Lending DRM'd books to a friend

[pdurrant]

Originally Posted by nogle

You do not gain a copyright when you purchase the atoms, you gain a single license to the bits to use in the fixed form.

While copyright certainly isn't transferred, ownership of the atoms does convey slightly more than what you describe. Consider CDs. You not only own the atoms that form the pits that encode the music, you are also (in the US) permitted to make copies of the data so encoded for personal user.

[Parataxis]

Originally Posted by nogle

In selling oly the bits, you are in fact making a copy. To transfer the work, you would make a new copy, then erase the first copy.

IANAL

Errr, did you miss the bit where I said "it would be much more in compliance with the doctrine if the DRM was set to ensure that if you did lend or sell your copy, you no longer had access to it"

Obviously, there are different modes of action between digital property and more traditional property. That said, allowing the sale of a digital book (and the destruction of your copy) seems much more in line with the first-sale doctrine than preventing said transfer.

[nogle]

Originally Posted by Parataxis

Errr, did you miss the bit where I said "it would be much more in compliance with the doctrine if the DRM was set to ensure that if you did lend or sell your copy, you no longer had access to it"

Obviously, there are different modes of action between digital property and more traditional property. That said, allowing the sale of a digital book (and the destruction of your copy) seems much more in line with the first-sale doctrine than preventing said transfer.

Did you miss this part?

Looking to the first sale doctrine, when you buy a book, you do not get the right to photocopy the book, destroy the original then sell the photocopy. You can only sell the atoms; the license to the bits transfers with the atoms.

When you transfer the bits, you are making a copy regardless of the destruction of the original.

IANAL

[ottdmk]

nogle: While you are technically correct, I don't believe there's a court in the world that would actually accept that argument.

As far as lending/selling e-books: there are a lot of technical difficulties to overcome. Libraries are able to lend e-books because of the infrastructure provided by Overdrive or one of the other, lesser-known, companies. The model works for libraries because Overdrive manages the licenses and the DRM enforces a limited term (three weeks in the case of my library.)

There isn't really a lot of incentive for a company like Kobo to invest in the infrastructure needed to make lending or selling possible. It would be a considerable expense for no return. And Kobo's model in particular makes it nearly impossible to implement.

Kobo, bless 'em, allow you to side-load their books onto any Adobe DRM capable device. (Or any e-pub device in the case of non-DRM'ed books.) So, how can they enforce any lending or selling protocol? Even if they had something in place on their servers to reassign the rights (temporarily or permanently) they can't do a thing about the sideloaded files. Adobe DRM does not require an Internet connection after you download the book. (Thank heavens.) There'd be no way for Kobo to police this.

The only way lending & selling can work is in a DRM free world where everyone's on the honour system. But publishing companies will fight tooth & nail to prevent this (mostly by trying to exempt e-books from first sale doctrine) because corporations will never, ever trust the honour system. (Plus the small detail that publishers have hated the used book market for decades.)

[hwlester]

Originally Posted by ottdmk

nogle: While you are technically correct, I don't believe there's a court in the world that would actually accept that argument.

As far as lending/selling e-books: there are a lot of technical difficulties to overcome. Libraries are able to lend e-books because of the infrastructure provided by Overdrive or one of the other, lesser-known, companies. The model works for libraries because Overdrive manages the licenses and the DRM enforces a limited term (three weeks in the case of my library.)

There isn't really a lot of incentive for a company like Kobo to invest in the infrastructure needed to make lending or selling possible. It would be a considerable expense for no return. And Kobo's model in particular makes it nearly impossible to implement.

Kobo, bless 'em, allow you to side-load their books onto any Adobe DRM capable device. (Or any e-pub device in the case of non-DRM'ed books.) So, how can they enforce any lending or selling protocol? Even if they had something in place on their servers to reassign the rights (temporarily or permanently) they can't do a thing about the sideloaded files. Adobe DRM does not require an Internet connection after you download the book. (Thank heavens.) There'd be no way for Kobo to police this.

The only way lending & selling can work is in a DRM free world where everyone's on the honour system. But publishing companies will fight tooth & nail to prevent this (mostly by trying to exempt e-books from first sale doctrine) because corporations will never, ever trust the honour system. (Plus the small detail that publishers have hated the used book market for decades.)

The difference is the way Adobe DRM supports lending versus buying. With lending, the DRM automatically expires the license at the end of the lending period whether the device is connected or not. For buying, the license doesn't expire, so some mechanism would have to be added to expire it or some type of limited license would have to be implemented like you have it for a year and then you have to renew it every year which would be bad for consumers.

[Elfwreck]

The currently-legal way to lend (or resell) ebooks is to swap around the hardware; Capitol v. ReDigi's recent ruling includes a bit on p. 13:

Section 109(a) still protects a lawful owner’s sale of her “particular” phonorecord, be it a computer hard disk, iPod, or other memory device onto which the file was originally downloaded.

Download your ebooks onto flash drives or memory cards *first.* Non-DRM'd ones can be legally sold, as long as the card itself changes hands. (DRM'd ones can be sold, but they're pretty useless without a crack, and the cracked version might be legal for personal use but isn't legal to sell. However, if there's a way to offer cracking info--like a PID number--along with the locked books, that would presumably not violate copyright law, although the DMCA starts getting wonky around that.)

This contradicts many sites' TOS, which say that the books cannot be transferred even by handing the device to someone else--but that's a matter of contract agreement, not copyright law.

Hmm. Maybe I should start buying ebooks, loading 10 or 20 at a time onto small memory cards, and selling the cards on ebay. As it is, most of my purchases are first loaded onto a portable drive, so I'll keep in mind that I can remove my *other* data and just sell the drive if I want to sell the ebooks.

Possibly, I can give away the drive; the new owner of the drive can copy the books they want to their own hardware (because copies for personal use are acceptable), and they can hand off the drive to someone else when they're done. The courts have never made a ruling about, for example, a magazine being handed around among friends, wherein each of them photocopies a favorite page or two to keep.

[jusmee]

Originally Posted by nogle

When you transfer the bits, you are making a copy regardless of the destruction of the original.

Which is exactly why I will never allow myself to be transported like in StarTrek

More seriously, because of the way in which all books are produced, I believe you purchase one COPY of a book, physical or digital, and as long as you never cause 2 copies to be in use at the same time, that seems fair. Of course - legal does not always equal fair.

[Elfwreck]

Originally Posted by jusmee

More seriously, because of the way in which all books are produced, I believe you purchase one COPY of a book, physical or digital, and as long as you never cause 2 copies to be in use at the same time, that seems fair. Of course - legal does not always equal fair.

Fair and reasonable has very little to do with the law, and even less with copyright law.

The law addresses copies and public performance, not "reasonable use of purchased materials." The court's ruled that, while making a copy for time-shifting and format-shifting for personal use is legal (Universal v Sony), making a copy for the purpose of transferring ownership is not. You can apparently only transfer ownership of the original download, which requires transferring the hardware along with it.

Not addressed: what counts as the "original download." Very first download only? Or any legitimate download from the purchase site? If your first download is to a script that says "send this in an email to me"--accessible through many devices--is it legit to sell any piece of hardware that houses that email?

(Rhetorical questions not likely to be addressed by a court anytime soon. Expect the next lawsuit to be over some enterprising person selling cheap flash drives with 10 books each on them, either already-read and sold at a discount, or temporary freebies gathered while the sale is on, and later sold.)