CNN: Why can't you 'give' an e-book?

[Shaggy]

Originally Posted by Elfwreck

we don't have an "it's illegal until a court says otherwise" system.

Although there are some who seem to wish that were true.

[Nathanael]

Originally Posted by Elfwreck

Copying entire contents of a bit of IP for format shifting has been found legal. Perhaps not for print specifically--but the principles of law are supposed to be applicable to different situations.

Courts don't deal in principles, they deal in application of principles to specific situations. If you want to walk into court and tell the judge, "But the Sony case said it was legal to copy entire TV programs for purposes of time shifting, therefore it's also OK to photocopy in its entirety a book I own because the print's too small," without the bother of demonstrating to the court's satisfaction why the two situations are equivalent -- well, again, all I can say is good luck with that.

Originally Posted by Elfwreck

Copyright law doesn't acknowledge a difference between text, image, audio, or video formats.

It most certainly does. Read § 101. Why would Title 17 define "audiovisual works" and "literary works" separately, and why would it say things like, “'Literary works' are works, other than audiovisual works" if it had no intention of distinguishing them? The distinction is repeated in § 102, which specifies that "literary works", "sound recordings" and "motion pictures and other audiovisual works" are separate categories of copyrightable material. You cannot simply cite the Sony case vis-a-vis literary works because Sony dealt with an entirely separate category of copyrighted material.

Originally Posted by Elfwreck

Saying "but that hasn't been found legal in court" is ridiculous--we don't have an "it's illegal until a court says otherwise" system.

Let's restrict ourselves to US copyright law, not nebulous blanket statements. And that is exactly what US copyright law says: it is illegal to copy without permission IP you don't own unless.... That's what the "exclusive" in "exclusive rights" (see § 106) means:

the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;

(My emphasis).

§§ 107 and 108 of US copyright law are carving out the exceptions to § 106. This is demonstrable both from § 106's prefatory "Subject to sections 107 through 122", and in the titles of most of those paragraphs, viz., §§ 107-112, 117, 119, 121 & 122 all begin with the phrase "Limitations on exclusive rights". In short, § 106 says, "it is illegal"; §§ 107-122 stipulate the "unless".

Originally Posted by Elfwreck

TITLE 17 > CHAPTER 1 > § 107
... reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

Sorry -- I don't see "note-taking" or "enlarging" in that list.

Originally Posted by Elfwreck

Directly states that fair use includes copying for research, comment, and scholarship, and strongly implies that fair use is not limited to the listed purposes.

Once again, all you're arguing is that there are exceptions to the "exclusive rights" enjoyed by copyright holders, and I am not disagreeing. My arguments are directed specifically against calvin-c's blanket statement that he is permitted to photocopy books he owns. As he did not specify any conditions, the clear implication of his assertion is "under any circumstances". Quite clearly, that is not what Title 17 says.

Originally Posted by Elfwreck

Not all contracts are legally valid. That contract says they can change the terms at any time... do you think that, if they changed the terms to say "all Kindle owners will be charged a $200 update fee every time Amazon edits its website," it would hold up in court?

I have no idea. You'll have to take that up with a court of law.

Originally Posted by Elfwreck

If it were changed to say, "Use of Amazon's Kindle books requires that the user never sue or charge with crimes any employee of Amazon.com," would that hold up?

Doubtful, most likely because that particular term would violate some other US law. Look, Elfwreck, you're attempting to argue that, because it's remotely conceivable that Amazon could at some future point unilaterally insert some unenforceable clause into its contracts, therefore the whole notion of contracts is ludicrous and unenforceable. Contract law doesn't work that way. Even if Amazon did at some future point do so, a court would simply invalidate that particular clause; it would never throw out the entire contract simply on the basis of a single unenforceable term.

Originally Posted by Elfwreck

The purpose of copyright, in the US, is to "promote progress."

No. The purpose of copyright is to secure the rights of authors and creators. "United States copyright law governs the legally enforceable rights of creative and artistic works under the laws of the United States."

Originally Posted by Elfwreck

Court Re-Affirms That First Sale Doctrine Can Apply to “Licensed” Software

First sale doctrine applies to software specifically because a physical medium (in this case the CD or DVD) is involved. Your article says as much: "Under the Copyright Act, owners of copyrighted material are given substantial rights in the particular copies they purchase." (My emphasis). Note that any rights I have with respect to copyrighted material I have purchased are restricted to the particular copy I own. Further (your article doesn't note this): my rights wrt to said copyrighted material extend only to authorized copies and do not include the right to make unauthorized copies, except for the purposes specified in §§ 107-108. And note that, if challenged by the copyright owner, the burden is on me to prove that I'm protected by fair use, not on the plaintiff to prove I'm not. Id est, illegal unless proven otherwise.

Note also that in the Autodesk case, the court only invalidated the portion of the contract forbidding resale of the physical medium. It did not invalidate the entire EULA just because it found one unenforceable clause.

In the Autodesk case, the defendant was reselling original copies of the Autodesk software. If, rather, he'd been burning personal copies of the disks, then attempting to sell those copies instead, I guarantee the court would have ruled much differently. This case simply reaffirms my original statement that first-sale doctrine is intrinsically tied to the phyiscal medium.

Those of us who've been around computers awhile remember a time when you used to get an actual physical Windows CD when you purchased a computer with Windows preinstalled (not a "recovery CD", but an pristine Windows install CD). Those CDs also used to turn up quite frequently in used computer stores (the fact that they were often stamped "not for resale" notwithstanding). Microsoft no longer allows computer manufacturers to include physical disks. Why do you suppose that is? Without a physical CD, you cannot resell your copy of Windows.

[Elfwreck]

Originally Posted by Nathanael

Let's restrict ourselves to US copyright law, not nebulous blanket statements. And that is exactly what US copyright law says: it is illegal to copy without permission IP you don't own unless....

Unless it's fair use. Whether fair use is a defense against the claim of infringement, or an area copyright law does not cover, is debated by a lot of lawyers.

I could go through point-by-point and bring up counter-examples, but I'm not inclined to waste time on it. I don't think I'm going to convince you. I don't think you're going to convince me. There is no "win the argument" at stake; we're not in court seeking a ruling. I suspect we've both brought up enough details for people interested in copyright law to make up their own mind, or do further research on their own.

It's a rather pointless topic to do detailed arguments over (I consider what we've done so far to be introductory arguments); no corporation, no author, is attempting to track down individuals who've copied books for their own personal use. And copyright law, being civil rather than criminal, doesn't trigger state activity; the IP owner has to file suit for a wrongdoing to be legally acknowledged.

Whether or not photocopying a book could be prosecuted, it's not going to be, unless that copy somehow becomes public.

[Lady Fitzgerald]

Originally Posted by Elfwreck

...The purpose of copyright, in the US, is to "promote progress."...[/URL]

[Purple Lady]

Originally Posted by Nathanael

Your examples -- markup, enlarging the text -- are issues of convenience. I hate to sound like a broken record, but case law, please. Otherwise, all I can say is good luck with that.

Enlarging the text is hardly a convenience if it's too small for me to read. This specifically allows removal of DRM from ebooks - see # 6. I need to remove DRM so I can use Calibre to enlarge the font and remove any large margins. Without margin removal, I sometimes get only 50 words per page. Also if I enlarge text, my ereader will not allow me to use the sketch function - it's use is restricted to only to the original font size, not enlarged font size.

classes of works subject to the exemption from the prohibition against circumvention of technological measures that control access to copyrighted works.
(6) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

[Elfwreck]

Originally Posted by Lady Fitzgerald

Yeah, well, I didn't say it was *succeeding* at promoting progress.

[pietvo]

Originally Posted by Nathanael

So imagine if Amazon allowed you to gift an ebook. Since the gift recipient did not enter into any legal agreement, he would presumably be legally free to do whatever he wants with the thing -- torrent it, send out copies to all his friends, whatever. Suddenly there's this legally unencumbered copy of someone's IP floating around the digital ether, with no way for the content owners to stuff the genie back in the bottle. Allowing people to send ebooks as gifts would create a huge loophole in the wall of legal protection content producers are trying to build around the content they own.

No, the recipient wouldn't be allowed to do that because of the copyright law. No legal agreement is necessary for that.

[aondotri]

Of course it's possible to give an ebook to someone by giving them the entire ereader.

What is the legal situation with giving or selling an ereader with DRM books on it?

[queentess]

Originally Posted by Viseguy

The headline now (2010-08-10 03:26:23 UTC) reads:
Why can't you give Kindle books as gifts?

Yeah, I thought that was pretty obvious from the original title on the article, but the OP changed it from "gift" to "give" (a misunderstanding of the nuances of the word?), which is an entirely different question.

[Shaggy]

Originally Posted by Nathanael

First sale doctrine applies to software specifically because a physical medium (in this case the CD or DVD) is involved.

Can you point out in the first sale doctrine where it limits itself to physical medium only?

Your article says as much: "Under the Copyright Act, owners of copyrighted material are given substantial rights in the particular copies they purchase." (My emphasis).

It makes no distinction between physical copies and digital copies.

Note that any rights I have with respect to copyrighted material I have purchased are restricted to the particular copy I own.

True, but whether it's a physical copy or a digital copy doesn't matter.

Further (your article doesn't note this): my rights wrt to said copyrighted material extend only to authorized copies and do not include the right to make unauthorized copies

Of course not, but this case has nothing to do with unauthorized copies. We're not talking about whether or not the Autodesk reseller was violating copyright, we're talking about whether or not the original purchase was a license or a sale. That has nothing to do with unauthorized copies.

Note also that in the Autodesk case, the court only invalidated the portion of the contract forbidding resale of the physical medium. It did not invalidate the entire EULA just because it found one unenforceable clause.

The point of the case is that they ruled it was a sale, not a license. I don't think anybody is claiming that the entire EULA was thrown out. Whether or not EULAs are legally binding at all is a different topic.

In the Autodesk case, the defendant was reselling original copies of the Autodesk software. If, rather, he'd been burning personal copies of the disks, then attempting to sell those copies instead, I guarantee the court would have ruled much differently.

Absolutely, but what does that have to do with anything we're talking about here?

This case simply reaffirms my original statement that first-sale doctrine is intrinsically tied to the phyiscal medium.

I don't see how. The case had nothing to do with whether first-sale is limited to physical medium.

[Shaggy]

Originally Posted by Nathanael

So imagine if Amazon allowed you to gift an ebook. Since the gift recipient did not enter into any legal agreement, he would presumably be legally free to do whatever he wants with the thing -- torrent it, send out copies to all his friends, whatever. Suddenly there's this legally unencumbered copy of someone's IP floating around the digital ether, with no way for the content owners to stuff the genie back in the bottle. Allowing people to send ebooks as gifts would create a huge loophole in the wall of legal protection content producers are trying to build around the content they own.

No, that's not how copyright law works. You're confusing it with contract law.

[NormHart]

While all the debate above is interesting it is going rather astray from the original article. (Not that that isn't the norm around here.)

I found this pithy comment amongst the various rants and raves and thought it an important alternative viewpoint.

Holding a kindle is a waste of a good drinking hand!

[calvin-c]

Originally Posted by Nathanael

Courts don't deal in principles, they deal in application of principles to specific situations. If you want to walk into court and tell the judge, "But the Sony case said it was legal to copy entire TV programs for purposes of time shifting, therefore it's also OK to photocopy in its entirety a book I own because the print's too small," without the bother of demonstrating to the court's satisfaction why the two situations are equivalent -- well, again, all I can say is good luck with that.

Courts most certainly do deal in principles-that's how they determine whether or not the precedents you cite apply. Admittedly they ask you (or your lawyer) to give them an argument as to why (or why not) the precedent should (not) apply, but that argument can be based either on similar facts or on the application of the same legal principle applied in the precedent.

As you say, when it comes down to the court accepting your argument-that really depends on how the judge feels that day. Do you feel lucky?