Re-selling DRMed ebooks: Legal or not?

[Shaggy]

Originally Posted by mgmueller

"you do it linked to a device" : Actually, isn't it (in Mobipocket's case) 4 devices = 4 PIDs? Following that logic, I could sell 4 of my readers, each of them fully loaded with my entire library?!

No, I think selling 4 readers with the same content would definitely be a copyright violation (you're distributing copies at that point). However, selling one reader with content on it, and then no longer accessing that content yourself shouldn't be a problem. Ideally, Mobipocket would let you request that the books you sold be removed from your account, but I don't know if that's necessary as far as the law is concerned. Just don't download/use those books again because the buyer of your device is now the owner of the rights to that content, not you.

[Terisa de morgan]

Originally Posted by mgmueller

"you do it linked to a device" : Actually, isn't it (in Mobipocket's case) 4 devices = 4 PIDs? Following that logic, I could sell 4 of my readers, each of them fully loaded with my entire library?!

Yes, but if you only register two devices and you lose them, you deppend on the seller's kindness to recover them...

[HansTWN]

With that current DRM mess, different devices support different systems and that are mutually exclusive, content providers are virtually asking customers to un-DRM the files. I would have no problems with DRM if all devices used the same system and you could transfer the files to any new devices (and remove them from the old devices). We have the same nonsense with regional restrictions on DVDs, etc. They are forcing people to work around these. Laws are very different in different countries, the US has the most restrictions. In Germany circumventing DRM for personal use (backup copy, second home, etc) is legal for DVDs, so most probably it is for e-books, too. But generally you have a lot fewer rights with digital copies than with physical copies.

Anyway, if you sell the books with DRM and do not keep copies for yourself nobody will sue you, and no court would convict. Many stipulations in contracts are not actually binding, some rights you cannot just "sign away", even if it says so in the fine print.

[HarryT]

Originally Posted by Shaggy

We're not talking about selling a copy of the file, we're talking about selling the original file and not keeping a copy.

But you do still have a copy - the copy on the bookstore's servers, which you can download again. I honestly do not think that "choosing not to download it again" has any relevence to the fact that it is your copy of the file, therefore in giving away or selling another copy of the book you are making a copy, and therefore violating copyright.

[mgmueller]

Originally Posted by HarryT

But you do still have a copy - the copy on the bookstore's servers, which you can download again. I honestly do not think that "choosing not to download it again" has any relevence to the fact that it is your copy of the file, therefore in giving away or selling another copy of the book you are making a copy, and therefore violating copyright.

I've sent an eMail to "Mobipocket" and asked for legal clarification.
"Amazon" directly came back to me and has promised an answer within a few days. They already stated in that eMail "complicated, answer will take longer than usual". I'll probably try the same with Sony. In the meantime, my interest mainly isn't about the money anymore. Now it's "sportsmanship", I HAVE to have an answer on that....

[HansTWN]

Originally Posted by HarryT

But you do still have a copy - the copy on the bookstore's servers, which you can download again. I honestly do not think that "choosing not to download it again" has any relevence to the fact that it is your copy of the file, therefore in giving away or selling another copy of the book you are making a copy, and therefore violating copyright.

Let us say this goes to trial. Records will show you have not downloaded the file again. So there are no damages. And if they take an honest person, who does not have any additional copies to court, that would be very bad publicity. But you are right, there should be a mechanism to give the right to download again to the buyer. Then everything would be clear. What if you gave your user name and password to the buyer, and he even changed it and you have no record?

[GeoffC]

For those in the UK, you may be interested to know that Which.co.uk are campaigning for the "format shifting of music file formats" to be legal - personal use. This is, apparently, supported by the British Phonographic Industry.

They are interested in personal comments regarding this. I have asked if the campaign will include DRM in electronic-books....


Anyone interested in making their own representation ...

Email views to helpwanted(at)which.co.uk ... with 'Sarah Kidner: format shifting' in the subject line....

[kacir]

Originally Posted by mgmueller

I've sent an eMail to "Mobipocket" and asked for legal clarification.
"Amazon" directly came back to me and has promised an answer within a few days. They already stated in that eMail "complicated, answer will take longer than usual". I'll probably try the same with Sony. In the meantime, my interest mainly isn't about the money anymore. Now it's "sportsmanship", I HAVE to have an answer on that....

Do not hold your breath for meaningful answer.

Their lawyers will veto any statement that could be used against Amazon under any far-fetched scenario. Americans are very skilled at "gaming the system" so anything you allow has to be very thoroughly inspected for possible loopholes. (please note that I am not saying that other nationalities are not likely to game the system)

I think that they [publishers] are most happy when the situation is unclear and *anything* you do with a book could be considered "not allowed" or "against EULA" or preferably even "illegal" under certain circumstances. If they ask three different lawyers that specialize in copyright law they are likely to receive five different answers.

[Shaggy]

Originally Posted by HarryT

But you do still have a copy - the copy on the bookstore's servers, which you can download again. I honestly do not think that "choosing not to download it again" has any relevence to the fact that it is your copy of the file, therefore in giving away or selling another copy of the book you are making a copy, and therefore violating copyright.

Just because you can break a law does not mean you are guilty of breaking it. Yes, if you do download another copy for your own use after you have sold it, then it would be a problem. But the potential for that to happen does not mean anyone is violating copyright.

Besides, all it would take to get rid of the potential for infringement would be to ask Mobipocket (or whoever) to remove the eBook from your download list. That has nothing to do with the legality though, just a house cleaning thing on your account.

[HarryT]

Originally Posted by Shaggy

Just because you can break a law does not mean you are guilty of breaking it. Yes, if you do download another copy for your own use after you have sold it, then it would be a problem. But the potential for that to happen does not mean anyone is violating copyright.

I'm afraid I think that you're on very "shaky ground" here. It strikes me as being the same situation as photocopying a paper book, selling someone the photocopy, and trying to "legitimise" that by saying "I promise that I'll keep the original on my bookshelf and will never take it down from there". I may of course be wrong, but it seems to me that the important point is the fact that you still have access to the original, regardless of whether or not you actually access it.

If you could get the bookstore to remove your access to the book, the case would be definitely be a lot stronger.

[Shaggy]

Originally Posted by HarryT

I'm afraid I think that you're on very "shaky ground" here. It strikes me as being the same situation as photocopying a paper book, selling someone the photocopy, and trying to "legitimise" that by saying "I promise that I'll keep the original on my bookshelf and will never take it down from there".

No, that's not the same. In this situation you are selling them the one and only copy that you have in your posession. However, the bookstore that you bought the paper book from has a service where they will replace the book for you if it becomes lost/damaged. Yes, you can still request that the bookstore issue you another one after you have sold your only paper copy, but you do not have additional copies in your possession, they are in the bookstores warehouse.

In the eBook case, just because Mobipocket will let you download another copy does not mean that you have another copy. Those files are on the bookstore's servers, not your own. Ideally you would request that Mobipocket remove the files, or request that the paper bookstore not provide you with any additional copies, but that's just a technicality. Copyright infringement would not exist until you obtained additional copies.

I may of course be wrong, but it seems to me that the important point is the fact that you still have access to the original, regardless of whether or not you actually access it.

No, Mobipocket has those files. You don't unless you request another one from them (IE, download another copy). Just because you potentially have the ability to create additional copies does not mean that you are in violation of copyright. You would actually have to create them for infringement to occur.

There are lots of laws that I have access to break right now, but I haven't done anything illegal unless I actually break them.

[Jellby]

Originally Posted by Shaggy

No, that's not the same. In this situation you are selling them the one and only copy that you have in your posession. However, the bookstore that you bought the paper book from has a service where they will replace the book for you if it becomes lost/damaged. Yes, you can still request that the bookstore issue you another one after you have sold your only paper copy, but you do not have additional copies in your possession, they are in the bookstores warehouse.

It could be argued that what you buy when you buy a DRMed ebook is the copy in the servers, and the right of making copies for you to read. In the paper-book analogy, you are buying the copy stored in the bookstore/warehouse, and they allow you to make photocopies from that... but you cannot sell the photocopies.

Man, I hate DRM

[Shaggy]

Originally Posted by Jellby

It could be argued that what you buy when you buy a DRMed ebook is the copy in the servers, and the right of making copies for you to read. In the paper-book analogy, you are buying the copy stored in the bookstore/warehouse, and they allow you to make photocopies from that... but you cannot sell the photocopies.

Man, I hate DRM

That goes back to the whole "license vs sale" question, which US courts have already answered.

[GeoffC]

head-twisting, brain-gnarling arguments ...damn DRM - and Geographical Restrictions..too ...

[HarryT]

Originally Posted by Shaggy

That goes back to the whole "license vs sale" question, which US courts have already answered.

The original poster, however, is in Germany, which may well interpret the law differently .