Re-selling DRMed ebooks: Legal or not?

[GeoffC]

From the front page of one of my purchased DRM'd e-books ....

"eBooks are not transferable. They cannot be sold, shared or given away as it is an infringement on the copyright of this work."

Admitedly without any legal qualification given - but the statement is unambiguous....

[mgmueller]

Originally Posted by GeoffC

From the front page of one of my purchased DRM'd e-books ....

"eBooks are not transferable. They cannot be sold, shared or given away as it is an infringement on the copyright of this work."

Admitedly without any legal qualification given - but the statement is unambiguous....

Amazon, (I've posted their reply before in this thread) stated more or less the same: "According to the Terms of Trade, it is illegal to resell the eBooks. However, you may resell the Reader devices after deleting the eBooks on them."

[GeoffC]

admittedly both are fairly standard phrases, but neither include the necessary reference detail that essentially backs them up in law....

[HarryT]

You may wish to refer back to the start of the thread - this has already been discussed in great detail .

[GeoffC]

Originally Posted by HarryT

You may wish to refer back to the start of the thread - this has already been discussed in great detail .

definitely discussed .....

[Harmon]

Originally Posted by HarryT

Now it seems clear to me that if a private person, even for personal use, removes DRM, that person is "circumventing a technological measure", and hence is in violation of the above section 103 of the DMCA, are they not? If this is not so, please could you explain why not, since the above seems pretty "clear cut".

Certainly. Stick with me - I spent three years in law school to learn this kind of stuff:

You are being misled by the meaning you are giving to the word "violation." The word "violation" does not mean "everything necessary to break the law." In the context of this statute, it means "the first thing that has to be established" if you want to sue someone.

When a statute makes something either the basis for a civil action or a criminal charge, it does so by laying out what lawyers call the "elements" of the transgression involved. The "elements" are all of the things necessary to create the liability, whether civil or criminal.

This particular statute sets out the elements for two things:

The first involves when a private party can bring a civil lawsuit against another private party. This is called a "cause of action," and it is established by Section 103.

The second involves when the government can bring a criminal action against a private party. This is called a "criminal charge," and it is established by Section 104, but we aren't discussing that right now.

So, starting at the beginning:

Section 101(a) describes the first element of a civil lawsuit, which it calls a "violation." It describes the physical action which is the first element necessary to establish civil. It is "necessary but not sufficient" for bringing a lawsuit.

Section 103 describes what is necessary, in addition to a "violation," for someone to bring a civil lawsuit. This additional element is an injury, which is required by 103(a): "Any person injured by a violation of section 1201..." No injury, no lawsuit.

This means that it takes a "violation" plus an injury to give rise to liability by the person doing the violation to make Section 103 applicable.

So the question becomes, what does Section 103 mean by "injured?"

Well, in this particular statute, there is not a specification of what is meant by "injured." So the way you find out what "injured" means is by looking to see what the Court can do if it finds that an injury has occurred. And what we see is two things:

One is that the Court can assess actual "damages" in the form of money. This tells us that "injured" means "financially damaged" in a way that can be measured, most likely, loss of profit.

But secondly, we find that the complaining party can ask for "statutory" damages. Statutory damages are normally awarded when the Court finds that the person bringing the lawsuit has been injured in some way, financially or otherwise, but in circumstances which make difficult or impossible to assign a financial value to the injury. So this tells us that "injured" also means "financially damaged" in a way that cannot be measured.

So now we know that the offended party can either prove actual monetary damage or claim what amounts to estimated damages, where the statute itself provides a minimum and maximum for such an estimate.

We turn to the facts of our ebook copying case. The ebook buyer of a DRMed ebook file circumvents the DRM in order to make a backup copy.

Is there a "violation" under the definition of 101(a). Yes indeed.

Is there an injury under 103(a)? What could it be? Well, perhaps it is that the buyer did not buy a second copy of the book to keep as a backup.

The question would be framed as "does the seller have a reasonable expectation that anyone buying one copy of an ebook will normally buy another copy if he or she wants a backup?" If so, the seller has been injured by the loss of profit; if not, no injury.

(This is a way of asking whether any actual financial injury occurs, even though there is a hypothetical injury. The law does not compensate for hypothetical injuries.)

At this point, we have to look at the general law of copyright and the digital environment in which ebooks are produced.

First of all, we know that there is something called "fair use" which allows buyers to make various kinds of copies of copyrighted material. Since the DMCA does not seem to overrule general copyright law, it must be interpreted in the context of that law. The DMCA and general copyright law should be read in para materia - a legal doctrine meaning "having the same purpose in mind" - with the general copyright law. And the general copyright law protects not only the creator's right to profit, but the user's right to "fair use" of the protected material.

Is it the normal and customary practice, in the digital environment, for consumers to back up items which they have purchased? Answer: yes indeed. If a consumer is wise, he or she buys some kind of program which backs up his or her entire hard drive. (I have one, don't you?)

It follows that making a backup copy does not result in an injury to the seller. Because there is no injury, evading DRM to create a backup is not prohibited under the DMCA.

[HarryT]

Very interesting. Thank you, Harmon!

[Format C:]

Originally Posted by Harmon

That's certainly what those sites would like you to think.

But let's suppose you went to the JCPenny site and bought a t-shirt. And on the site, it says that you are the only person that can wear the t-shirt. Do you think for a minute that such a condition means that you can't give or sell the t-shirt to someone else to wear?

Of course it doesn't. If you buy it, you can transfer it. JCPenny cannot "sell" you a t-shirt on the one hand, and keep you from doing whatever you damn well please with it on the other.

And the same thing goes for ebooks or anything else you buy. If you pay for it, and do not agree to return it, you own it, and can do whatever you want to with the specific file you have downloaded. You can't copy it and sell it while retaining the original, because there are specific laws against that. But you can give the original away, or sell it, or delete it, or compress the file, or put it on your Sony even though you bought it at Amazon, if you can figure out how to do it. Not illegal. Not a violation of the contract. Not immoral. Not fattening.

NOW - having said that, please note that the original question was about the situation in Germany, not in America. What I have written above is about the situation in America (except, incidentally, as regards real estate) and probable the same for any country where the legal system is derived from the English legal system.

It is possible that in Germany, the law is different. But nobody who is not familiar with German law is in a position to say one way or another, and I doubt that you are any more familiar with German law than I am, we being good English cousins.

Like I said before, the point is that you don't buy ebooks.
You pay for it, but you don't own it at all.

[Format C:]

Originally Posted by Harmon

What do you mean by "illegal copy?"

Seriously. Let's have some definition of this term.

If something is "illegal," that means that doing it violates the criminal law (exposing the violator to a term of imprisonment or some lesser penalty, like "community service") or violation of the civil law (exposing the violator to a fine or lesser penalty, but not imprisonment.)

In Italy, the so called Decreto Urbani of 2003 gives a 4 years term for giving away copies of a file.

That's basically why in the P2P world Italians are known as heavy downloaders and poor uploaders...

[Format C:]

OOOPSS....

[Shaggy]

Originally Posted by wodin

Yes, along with some method to require you to "move" and not "copy". The objective here is to only have one instance of the file in your possession, unless you have paid for more than one.

Perhaps in your unbounded brilliance you can think of another way of doing it, but in my utter ignorance, the only way I can see is to build it into the library management software. When Microsoft gets into the ereader library management software business, then perhaps a letter to them might be in order. Why don't you take that little project on?

You don't have to be required to move the file in order for it to be legal, you just have to be able to move the file. You don't need anything build into any sort of library management application. It just has to be possible to move, they don't have to make it impossible to copy.

[Shaggy]

Originally Posted by HarryT

Your "ownership" of a paper book is actually rather limited in terms of what you're allowed to do with it. You can re-sell it or give it away, yes, but you can't make copies of it and sell those; you can't read it aloud and charge people admission to come and listen to you do so.

Nobody is suggesting doing any of those things.

[Shaggy]

Originally Posted by HarryT

Depends where you live. It's not legal in the UK, for example. I'm not entirely sure that backing up DVDs is legal in the US

It's just as legal as copying CDs in the US (there's no diffference).

- ISTR that one of the big software companies (might have been the makers of "RealPlayer") was forced to withdraw from sale a DVD "backup" program when the courts ruled that it was a tool for infringing copyight, and that DVD owners did not have an inherent "right" to create backup copies of their DVDs.

Most (if not all) burning applications contain software to backup DVDs. Nero certainly does, and it's one of the largest commercial ones. The case about RealPlayer was probably related to removing DRM, not whether backups were legal.

[rrburton]

Originally Posted by Shaggy

Maybe we should send a suggestion to Microsoft to build something like that into the next version of Windows. I'd recommend calling the command "move" instead of "copy".

Presently available and has been since forever - http://www.computerhope.com/movehlp.htm

[Shaggy]

Originally Posted by Format C:

Like I said before, the point is that you don't buy ebooks.
You pay for it, but you don't own it at all.

Of course you do (at least, in the US).

You don't own the story that is in the eBook, but you certainly own the copy of the eBook that you paid for. In terms of your right of first sale, an eBook is no different than a t-shirt.