HarperCollins Sues Open Road Over E-Book Rights

[fjtorres]

Originally Posted by ATDrake

PS. Actual IP/Publishing specialist lawyer's informal analysis of the HC vs Open Road case and the implications on his blog: "Who Controls eBook Rights? - The Court Battle that Could Determine the Fate of the Book Industry:A Review & Analysis"

Well worth a read, IMHO.

Understatement.
One thing jumped out at me: the courts have held that movies broadcast on TV can be considered an "exhibition" or "distribution" but that Video-cassette (and DVD, BD, etc) were not a comparable right under even broad interpretations of contract language because the latter were typically sold or rented to individuals (and not provided as a service to groups over public venues).

Ding. Ding. Fracking ding!

Harper Collins just opened the Pandora's box of ebook ""sale" vs "license".
If Open Road's lawyer wants to go down that road the issue of the 50-50 license royalty split pops in.
As does the fact that DRM'ed ebooks are not an actual sale of a physical product as was typical in 1971 but a license to view. Movie vs video-cassette in reverse.

As we've all known for years, DRM'ed ebooks *are* a different, separate product.

Now I *really* want this thing to go to trial.
Which means it'll get settled out of court in short order as I doubt either side wants the box opened publicly.
It does, however, explain why HC sued OpenRoad rather than the author or her agent. (Aside from the poaching aspect of an ex-HC exec going after what HC considers one of *their* serfs.)

[murraypaul]

Originally Posted by ATDrake

Funny you should mention the cars, as it seems that the US has a "lemon law" designed specifically to protect consumers from being shafted too badly by the purchase of egregiously bad cars. And provides consumers with rights that "may exceed the warranties expressed in purchase contracts".

Again, I'm not saying that people shouldn't be able to sign bad deals which end up not benefiting them.

Only that there should be a limit to how long those bad deals can last, and that the truly exploitative ones be able to be invalidated if there is sufficient cause.

There are other consumer protection laws in place to protect people not so much from their own stupidity or ignorance, which you seem to believe to be the trumping contributing factor, but from being so grossly taken advantage of by profoundly negligent and/or outright predatory parties.

Again, I don't see why content creators shouldn't have some limited protection under the law against those latter such, just like other people do.

Because consumers are not expected to take legal advice before a purchase. (Except in some special situations such as real estate purchases.)
In a contract situation where the author has their own independent legal advice, they do not need the same level of protection. They are assumed to understand the implications of what they are agreeing to. It is the responsibility of their legal advisor to make sure that they do.

[Fbone]

Originally Posted by fjtorres

Now I *really* want this thing to go to trial.
Which means it'll get settled out of court in short order as I doubt either side wants the box opened publicly.
It does, however, explain why HC sued OpenRoad rather than the author or her agent. (Aside from the poaching aspect of an ex-HC exec going after what HC considers one of *their* serfs.)

This will be settled out of court. Neither party will want to explain to a Federal Judge and/or 6-12 jurors that you can not purchase an ebook. Explaining licenses and DRM along with its restrictions will hurt both parties.

[Phogg]

Originally Posted by Fbone

This will be settled out of court. Neither party will want to explain to a Federal Judge and/or 6-12 jurors that you can not purchase an ebook. Explaining licenses and DRM along with its restrictions will hurt both parties.

No.

That is only half right.

Neither of these parties will want to explain that there are many writers selling their work in digital form (with which the purchacer may do as they please). However these two players wish to rent the public works for a time, but misrepresent that lease as a "sale" to the public at the time of the transaction. It would shatter their business model if the marketplace were clearly labeling which works were being sold and which merely rented.

[ApK]

You REALLY underestimate people. Consumers have been buying limited licenses to intellectual property for many years. We get it. We really do. The business models will hold up just fine. Most people are simply not bothered by it or hung up on the terminology like some of you are.

That not to say that some of us wouldn't like some changes to the terms. We would.

[Phogg]

I do not underestimate people in any way.

If it did not matter to sales, The agency book sellers would simply state they are leasing the works of authors, an no DRM scheme dreamed up yet would require any additional legislation of any sort to become enforcible. Just like the limitations when you lease a car. There would be no question when they go after pwople who copy and give out said works either - the public understands the limited use that comes with rental.

Win/win for the publishers.

Unless of course, the public would compare their offerings to those of authors who choose to sell open use of their works.

If it doesn't matter, how come Penguin or someone isn't doing it now?

[Elfwreck]

Originally Posted by Phogg

I do not underestimate people in any way.

If it did not matter to sales, The agency book sellers would simply state they are leasing the works of authors, an no DRM scheme dreamed up yet would require any additional legislation of any sort to become enforcible. Just like the limitations when you lease a car.

One of the legal problems with the "lease/license" model for ebooks, is that in the US, a license needs an ending date. There is no "you pay for this and you can't transfer it and can only use it in the ways I allow, forever, but there's no expiration date on the contract between us; you get to keep using it in the ways originally authorized forever--unless my computer system changes, in which case, you can maybe only use it on the original authorized devices" and so on.

"Permanent licenses" were deemed to be "sales" in a couple of critical court cases. (Movie houses "licensed" old movies for destruction into cellulose-based stuffing and similar manufacturing uses, not to be resold & watched--but the buyers sometimes managed to salvage a whole movie & resell it.)

US v Wise includes details like,

"appellant knew that films, unlike other copyrighted works such as books, phonograph records, and sheet music, are not generally sold but are licensed for exhibition," which point goes the other way for ebooks: everyone knows you "buy" books; you don't license the viewing of books.

A "license agreement" that said,
"Said print is furnished you for your personal use and enjoyment and shall be retained in your possession at all times; said print shall not be sold, leased, licensed or loaned by you to any other person and shall not be reproduced in any size or type prints, or otherwise; and said print shall not be exhibited by you publicly for profit, paid admissions or otherwise, but the use of said print by you shall be confined to private home showings and library purposes."

Was ruled to be a sale--it gave permission for use, indefinitely, with no plan to return the item, which means that resale of it is legal.

There would be no question when they go after people who copy and give out said works either - the public understands the limited use that comes with rental.

Win/win for the publishers.

Except for the persnickety "hope that these license terms actually hold up in court as a license" part. (In addition, of course, to the "try to sell license to view for the same price as ownership of a book" if they're not allowed to label the license & sale the same way.)

If I were a clever-and-rich IP lawyer who wanted to be richer, I'd look into a class action lawsuit against Amazon for claiming to "sell" Kindlebooks while only licensing them, with an amount of damages equal to, oh, 2/5 of the sales prices of those books--a standard used-book-store payment rate.

[ApK]

Originally Posted by Phogg

If it did not matter to sales, The agency book sellers would simply state they are leasing the works of authors, an no DRM scheme dreamed up yet would require any additional legislation of any sort to become enforcible. Just like the limitations when you lease a car. There would be no question when they go after people who copy and give out said works either - the public understands the limited use that comes with rental.

They are not leasing, so they would not say that. They are not renting, so people's experience with rentals is irrelevant.
It's the purchase of a particular license.
People understand this in concept, if not in those terms.
They buy licenses for limited use of intellectual property all the time.
They know that when they "BUY" a paperback they are not necessarily allowed to make copies and give them to all their friends, or when they "BUY" a DVD, then cannot necessarily allowed to stream the content over a public web site.
Most folks seem to have no problem getting this concept, as most folks realize that there is not nearly the amount import in the terms "buy" "lease" and "rent" as some folks seem to think.

ApK

[Elfwreck]

Originally Posted by ApK

They buy licenses for limited use of intellectual property all the time.
They know that when they "BUY" a paperback they are not necessarily allowed to make copies and give them to all their friends, or when they "BUY" a DVD, then cannot necessarily allowed to stream the content over a public web site.

However, with both of those cases, they know they're allowed to lend or sell the item to their friend if they wish.

The companies that sell ebooks alongside print books try very hard to convince customers that they're selling the same thing in different formats--hardcover, paperback, mobi--rather than selling two kinds of book and licensing the use of digital content in mobi format.

The Kindlebook pages say "Buy now" not "click here to buy a license to read this." The sellers are deliberately deceptive--they don't want to admit that the rights being purchased are very different from buy-a-book rights. (And publishers don't want this either, because many contracts have different royalty rates for usage licenses instead of book sales.) The terms of the license are written up in tiny grey text, are not easily available from the purchase page, and contradict some of the other features of the ebooks. (Kindlebooks are sold for "personal use only." But some of them can be loaned; the TOS makes no mention of exceptions.)

Knowing which parts of the TOS are intended to be followed, and which are not, is not clear. Knowing what *legal* rights a person has outside of the contract is also not clear. (If you transfer ownership of a public-domain Kindlebook, you may be in violation of the TOS and Amazon could cut off your account access. However, you're not in violation of copyright law.)

If the HarperCollins case actually goes to court instead of being settled, we may get an important precedent, because cases involving detailed consideration of how digital content works, are rare.

[ApK]

Originally Posted by Elfwreck

However, with both of those cases, they know they're allowed to lend or sell the item to their friend if they wish.

That some uses and restrictions are different from one kind of thing to another should hardly hardly a dark secret to anyone.

And, not for nothing, you CAN lend ebooks. Amazon even facilitates it.
Thy fact that you can't lend them in exactly the same way as a paperback s not a suprise t mst people, because it's not a paperback.

The reason Amazon has not been sued over the "buy" button is most likely because there is nothing wrong with it, legally speaking.

That people might want, perhaps even deserve, or in some cases, have without knowing, other rights or permitted uses has little or nothing to do with the terms "buy" "lease" or "license."

Those things have to do with copyright law, fair use doctrine, DRM, and market forces as applied to the IP providers.

Originally Posted by Elfwreck

If the HarperCollins case actually goes to court instead of being settled, we may get an important precedent, because cases involving detailed consideration of how digital content works, are rare.

If it does go to court, I'll bet you a Dr. Pepper it will not amount to an important precedent in matters of buy/lease terminology.

ApK

[tubemonkey]

Originally Posted by ApK

Thy fact that you can't lend them in exactly the same way as a paperback s not a suprise t mst people, because it's not a paperback.

It might not be a surprise to those who frequent book message boards, but it comes as a shock to others. When I tell friends with new ereaders about the restrictions associated with ebooks, they're stunned.

The lending model for ebooks is hardly what the average person would consider to be a loan. For starters, not all books are eligible. Then those that are can only be loaned once and only for 14 days. That restriction is extremely harsh.

Couple the fact that ebooks aren't owned, are overpriced, can't be resold, and can only be loaned once (if at all); it's easy to see why many are up in arms over this. But it matters not, because enough people have given tacit approval to this model for the publishers to continue it.

Personally, I don't care one way or the other what publishers do. If I feel the price for an ebook is too high, I walk away. Currently, there isn't any book on this planet that would get me to spend more than $2.99 for it.

[Andrew H.]

Originally Posted by ApK

And, not for nothing, you CAN lend ebooks. Amazon even facilitates it.
Thy fact that you can't lend them in exactly the same way as a paperback s not a suprise t mst people, because it's not a paperback.


ApK

You can also just lend someone your e-reader and they can read everything on it. It only becomes problematic when you are trying to make a digital copy of the e-book.

But, conceptually, that's not much different from a paper book: you can lend someone a paper book, but you can't make a xerox of the paper book and lend them that.

[Elfwreck]

Originally Posted by Andrew H.

You can also just lend someone your e-reader and they can read everything on it.

Not according to the TOS on most ebook store sites. Amazon, B&N, Fictionwise & Smashwords all have TOS bits that prevent any sharing whatsoever, with the small exception that B&N has built their one-time two-week lending into the TOS. However, ebooks are claimed to be for personal non-commercial use only, an installable on devices that you own only.

(Non-commercial use... apparently, you can't use B&N ebooks for job research.)

If it's reasonable to ignore that part of the TOS, why not ignore other parts as well?

[Fbone]

Originally Posted by Elfwreck

Not according to the TOS on most ebook store sites. Amazon, B&N, Fictionwise & Smashwords all have TOS bits that prevent any sharing whatsoever, with the small exception that B&N has built their one-time two-week lending into the TOS. However, ebooks are claimed to be for personal non-commercial use only, an installable on devices that you own only.

I contacted SW regarding this and their response was you can share your ereader, computer, phone, tablet with others but you cannot make a separate file to share with others. That would require making a copy.

When I specifically asked if I needed to buy another ebook copy for my spouse to read, SW said yes unless you hand her your ereader. This will not violate the T&C. Sharing in this case means file sharing not device sharing.

[Elfwreck]

Originally Posted by Fbone

I contacted SW regarding this and their response was you can share your ereader, computer, phone, tablet with others but you cannot make a separate file to share with others. That would require making a copy.

When I specifically asked if I needed to buy another ebook copy for my spouse to read, SW said yes unless you hand her your ereader. This will not violate the T&C. Sharing in this case means file sharing not device sharing.

So, "share" means something different from the common dictionary definition, and they expect readers to just understand that? The TOS says "you are not authorized to share, sell, or distribute the work to others." Most of us assume "distribute" means "hand them my functional copy." Apparently, you *are* allowed to distribute, as long as you're not making extra copies? Does that mean you can sell also, as long as you're not making extra copies--like, if you downloaded your purchases to a flash drive and then sold that? (If not, is it against the TOS to get out a reader I don't use much anymore, load a copy of a book onto it, and hand that to another person? It's okay to share as long as I'm taking a financial risk?)

The "buy extra copy for another person" is a brand-new feature that didn't exist a couple of months ago.

I'm also unsure about the "your ereader" part. I live in a community property state, and we don't have "mine" and "his" appliances. We have devices that one of us prefers to use more than the other, but it's understood that we own everything jointly.

I am not fond of "oh, you know what we really mean!" TOS, when they've been used as grounds for lawsuits in some situations. If they mean you can share as long as you're not making an additional digital copy, they need to say that.