Re-selling DRMed ebooks: Legal or not?

[HarryT]

Originally Posted by Format C:

Am I misunderstantig or as for now it's illegal in UK to sync CD's to an iPod?

No, you're not misunderstanding. It is illegal, but it's one of those laws which is universally broken, and universally ignored. Even the government admits that it's a ridiculous situation.

[kacir]

Originally Posted by Shaggy

It is trivial. I'm sorry you do not know how to successfully delete a file.

If you delete the file by pressing DEL button, then empty the trashcan, then format the disk, file still can be recovered by a knowledgeable user with tools downloaded from the net.
Even so, you never know what remained in the swapfile, or some temporary directory.

If you overwrite the formatted disk with zeroes and then with random data, the file STILL can be recovered. This time you would have to use special forensic software and you would have to exchange the board with electronics on the HD with a custom made one.
Military regulations require at least 7 times overwrite the disk with random data before it is considered deleted. Disks with sensitive data have to be physically destroyed.

[Shaggy]

Originally Posted by HarryT

It does indeed very badly need to be fixed. There is a proposal, which has the backing of the British Phonographic Industry, to legalise the backing up and format shifting of CDs, etc, and that would presumably also apply to eBooks.

Yeah, sounds like a bad law.

I knew that making a personal copy of a book was permitted in the US, but I'm really surprised to hear from zerospinboson that one is permitted to retain the copy after selling the original.

I don't know if what he said is correct or not, it may be a "grey area". I think trying to sell the "original" multiple times is definitely infringement. As for selling the one you bought and keeping the backups for yourself... I don't know. The intent of the law is to stop unauthorized distributors. I don't think a single legal distribution while keeping a personal backup is something they had in mind when they wrote these laws.

[Shaggy]

Originally Posted by kacir

If you delete the file by pressing DEL button, then empty the trashcan, then format the disk, file still can be recovered by a knowledgeable user with tools downloaded from the net.

True, but that's not the point.

[Elfwreck]

Originally Posted by Shaggy

The intent of the law is to stop unauthorized distributors. I don't think a single legal distribution while keeping a personal backup is something they had in mind when they wrote these laws.

Single individuals making and selling single copies weren't even what they had in mind, which is why the penalties are so extreme--they're aimed at publishing houses, not individuals. They're horrifically unbalanced when applied to smaller settings.

[Shaggy]

Originally Posted by Elfwreck

Single individuals making and selling single copies weren't even what they had in mind, which is why the penalties are so extreme--they're aimed at publishing houses, not individuals. They're horrifically unbalanced when applied to smaller settings.

Yeah, tell that to Jammie Thomas.

[Elfwreck]

Originally Posted by Shaggy

Yeah, tell that to Jammie Thomas.

That's the case I was thinking of. I'm not sure any sane person can say, "this woman did ~$2million in damages to the RIAA."

Rulings like that will promote the idea that hey, it's legally better to steal physical discs... obviously, the law thinks that's less egregious than making a copy. For that matter, breaking into the recording studio and destroying the master recordings is likely less egregious than sending a copy of an MP3 through email.

This is... not a message I want promoted.

I'm very glad she's challenging the rulings on constitutional grounds. $2mil for copying certainly seems "cruel and unusual" to me, especially as the copyright owners don't seem able to prove any actual lost sales as a result of the copies.

[Shaggy]

Originally Posted by Elfwreck

That's the case I was thinking of. I'm not sure any sane person can say, "this woman did ~$2million in damages to the RIAA."

I could make quite a few comments about problems with that case, but I'm not sure this is really the right place for that. I do agree with you though that the situation of an individual reselling a single eBook is not what current US copyright laws/penalties were intended for.

In my view, selling/lending an eBook should be no different in the eyes of the law than doing the same thing with a pBook. As far as copyright is concerned they are the same thing. The method you would use to sell an eBook may be different than for a pBook, but that can be worked out. The main concern is that once the transfer has occurred the buyer has rights to the content and the seller does not. The specific details of how to accomplish that are unimportant, as long as it is accomplished.

[Harmon]

Originally Posted by HarryT

Shaggy,

It is having been an IT professional for more years than I care to remember that makes me all too painfully aware of just how damned hard it really is to "delete" information from a hard disk. If you think that it is "trivial", then I most respectfully invite you to do a little more research into the subject. You will find that it is distinctly non-trivial, I assure you.

I work for a company which routinely deals with highly confidential information, and believe me, "clicking the delete button" doesn't cut it if you actually want to wipe the data.

Shaggy's right - it's trivial. Not in the context of dealing with confidential information, but rather, in the context of the ordinary user who sells or transfers his copy of an ebook to another person in a casual sale. No rational person will bother to clean up his computer of all the various incarnations of the ebook, unless someone comes up with an all in one "sell your ebook and clean out the backup copies" freeware program for ebookworms. And then, only if it indexes all your ebooks automagically.

I know there are a few compulsively organized types out there, who know where the backup files are, and all versions thereof, but the rest of us keep our computers about as organized as most guys keep their sock drawers. We aren't going to spend our time dealing with it, except on an as needed basis, taking what's on top, and when we find two socks that match, that's that.

[Harmon]

Originally Posted by Elfwreck

I'm very glad she's challenging the rulings on constitutional grounds. $2mil for copying certainly seems "cruel and unusual" to me, especially as the copyright owners don't seem able to prove any actual lost sales as a result of the copies.

That was a civil case. So while the outcome might be "cruel & unusual," that Constitutional concept doesn't bear on this case. It only relates to crimes.

What we have here is a disproportionate award of damages, which almost certainly will be reduced on appeal. How much depends - I've read that she lied about what she did, which neither juries nor courts like.

The inability of the copyright owners to prove any lost sales is irrelevant. That's not something they have to prove, except if they elect to go after actual damages, and then only if lost sales is at issue. There are probably other ways that a copyright owner could suffer actual damages.

But at any rate, under the copyright act, the owner can just elect statutory damages for the infringement itself. The whole point of statutory damages is to deal with situations where the owner finds it burdensome, or even impossible, to prove damages.

[Harmon]

Originally Posted by HarryT

I think that the typical computer user probably thinks that clicking the "Delete" button really does delete the file - ie physically wipe it from the disk. You and I both know that this is not the case. My question is whether doing this is sufficient to satisfy the requirements of the law.

I'd think so. Just think about the proof for a minute:

Lawyer: And what did you do after you copied the ebook file to the cd?
Witness: I deleted the file on my computer.
Lawyer: and how did you do that?
Witness: I hit the delete button.
Lawyer: did you do anything else?
Witness: No.
Lawyer: are you aware that using the delete button doesn't delete the file?
Second lawyer: objection. Assuming a fact not in evidence.
First lawyer: Your Honor, I'm inquiring concerning what the witness believed.
Judge: I will allow the witness to answer whether he knows that using the delete button doesn't actually delete the file.
First lawyer: read back the question.
Court reporter: are you aware that deleting a file doesn't delete the file?
Witness: uh...no.
First Lawyer: do you mean to tell this court that you believe that deleting a file actually deletes the file?
Second lawyer: objection. Asked and answered. My colleague is arguing with the witness.
Judge: sustained.
First lawyer: isn't it true that deleting a file only removes the information pointing to the file, so that the actual file remains on the computer?
Second lawyer: objection. Your Honor, the witness has already stated that he was unaware that using the delete button does not delete the file.
Judge: sustained.

Gee, isn't this fun? But the point is, a person can only do as much as we can reasonably expect that person to do. Since your inquiry concedes that the normal computer user does not know that using the delete button does not delete the file, how in the world can anyone hold him responsible for not doing anything else?

[Harmon]

Originally Posted by HarryT

No, it's most certainly not a "red herring", as you call it. Copyright law is all about the making of copies (by definition!), and if the ability to re-sell an ebook is dependent upon there being no other copies of that ebook held by the seller, it is very pertinent to ask to what lengths the seller has to go to in order to ensure that this is the case. I do not know what the answer to that question is.

I agree that your inquiry is pertinent to the matter. The answer is that he has to do whatever a "reasonable man" (meaning normal everyday person who reads ebooks) would be expected to do. Which, in my view, is delete the file using the delete button.

Sure, there are random copies floating around the computer which a knowledgeable computer person can find &/or recover. But the act of deleting evidences an intent not to retain a usable copy of the ebook, so for practical purposes, he hasn't retained a copy, and that's all the law will care about.

[Format C:]

Originally Posted by kacir

If you delete the file by pressing DEL button, then empty the trashcan, then format the disk, file still can be recovered by a knowledgeable user with tools downloaded from the net.
Even so, you never know what remained in the swapfile, or some temporary directory.

If you overwrite the formatted disk with zeroes and then with random data, the file STILL can be recovered. This time you would have to use special forensic software and you would have to exchange the board with electronics on the HD with a custom made one.
Military regulations require at least 7 times overwrite the disk with random data before it is considered deleted. Disks with sensitive data have to be physically destroyed.

I'm sure that to photocopy a paperback is a lot easier than to to recover a deleted file...

[Shaggy]

Originally Posted by Harmon

That was a civil case. So while the outcome might be "cruel & unusual," that Constitutional concept doesn't bear on this case. It only relates to crimes.

The problem is that current copyright law has been written to apply criminal level punishments to trials with only civil standards of evidence. The reason the bar is set much higher for what the prosecution has to prove in criminal cases is because the penalties are usually much higher. What we have now is way unbalanced in favor of the copyright holders. The requirements for proof are very low and the penalties are very high.

What we have here is a disproportionate award of damages, which almost certainly will be reduced on appeal. How much depends - I've read that she lied about what she did, which neither juries nor courts like.

True, she certainly didn't do herself any favors. However, that is what perjury charges are for. The judge/jury are not supposed to increase the penalties because they were annoyed at the defendant.

The inability of the copyright owners to prove any lost sales is irrelevant. That's not something they have to prove, except if they elect to go after actual damages, and then only if lost sales is at issue. There are probably other ways that a copyright owner could suffer actual damages.

But at any rate, under the copyright act, the owner can just elect statutory damages for the infringement itself. The whole point of statutory damages is to deal with situations where the owner finds it burdensome, or even impossible, to prove damages.

That's true if the main problem was actual damages versus statutory damages. The issue I see here isn't so much that they didn't prove any lost sales, but that they never proved any infringement occurred. The only thing the plaintiff really showed was "making available", but the courts have already said that's not enough to be infringement.

[Harmon]

Originally Posted by Shaggy

That's true if the main problem was actual damages versus statutory damages. The issue I see here isn't so much that they didn't prove any lost sales, but that they never proved any infringement occurred. The only thing the plaintiff really showed was "making available", but the courts have already said that's not enough to be infringement.

So you must believe that the jury instructions were wrong.

(BTW, I've read something recently that suggests that my supposition that the statutory damages will almost certainly be reduced by the court of appeals may also be wrong. This woman could be dead in the water.)