Maryland Ebook Licensing Law Ruled Unconstitutional

[MGlitch]

Originally Posted by SteveEisenberg

If I am to take this literally, you are an extreme libertarian. We would have to discuss that in the political section.

I don’t align myself with any particular party. Nor is it particularly relevant to the question asked. As a business I should have the right to sell my goods or not to whoever I choose, so long as it’s not for a reason which goes against a protected class. Libraries don’t fall under protected classes though they may serve those who do.

As for books, I think I can just trot out the classic freedom to read in support of democracy mantra. It may be that there are a few countries so affluent that few people need public libraries for extended exposure to the widest range of viewpoints, but most of the world is not like that.

This seems chiefly concerned with third parties (neither publisher nor library) removing books from libraries through (I presume) political pressure among other means. Not publishers choosing not to sell to libraries of their own volition. As to your last point that again is a moral reason not a legal argument. Libraries are still well stocked in Maryland and across the US (I’ll not speak for the world as it’s far too vast and varied to try and establish a base of what is well stocked, it’s also outside the scope of the OP). Bookstores still exist and I can assure you not all patrons buy the books they read within the walls of those stores.

As for the eBook role here, eReader prices haven't gone down as fast as I thought they would, so that they might become a preferred reading tool for lower imcome people worldwide. Bit it will come as eInks patents expire.

Tablets can be had for around 50$ USD, there are cheaper though I can’t speak to their quality, and of course there’s second hand which seems like a fairly viable option especially compared to the sub 50$ tablets sold as new. With that and a library card you’ve got a virtually limitless number of books at your fingertips. Eink isn’t the only way in to the library system. This is also overlooking smartphones which providers are almost throwing at consumers to sign up with them, and not last decades models either these are typically current or one generation behind current models. Now granted tablets aren’t a single purpose tool and I personally prefer my Kobo to a tablet for reading but the option is there and at a very reasonable price. Though you can probably find decent eink devices from 50-70 used and certainly from 70-100 new, will they have all the bells and whistles of the higher priced models no, but they are well above functional.

The Maryland law only concerns titles available electronically. There are so few more or less current narrative books still unavailable electonically that I don't see a big freedom to read issue with undigitized books.

Let’s say you’re an artist you paint primarily in reds and greens. Your logic would say I can buy your prints and redistribute them altered for red/green color blind individuals for free. This undermines your ability to sell your work as it’s now available free and with some effort can be converted back to its original form. The same is true for books being converted to braille.

I’d agree with you a little if you were talking about a 1:1 conversion after which the original is destroyed and the party to whom the new format is given expressly agrees not to duplicate it. But this is rather difficult to enforce on every front involved.

[Quoth]

Originally Posted by SteveEisenberg

In democracies, you can’t stop a library, or an individual you don’t like, from buying a paper copy.

You can't publicly loan, rent or show a copy of book, music, dvd etc that's legitimately bought in most countries. The rights holder can (and will) sue you (it's a civil contract violation in most countries. You need a licence from the rights holder. If it's a physical copy you can privately loan it (but not for hire) or resell it. You can't use it for public performance either without paying a licence fee in most countries.

Some countries it's a criminal rather than civil offence. Note in most countries the tariff for a criminal offence is fixed or has a cap. There is no cap on civil suits (damages may be assessed by a jury or judge etc). So in Ireland while Theft of Service is a criminal offence (and a limit of about €6000 or maybe 6 months jail) the Satellite Pay TV and Cable companies decline to agree to prosecutions and sue those providing gear, typically about €100,000. The customer of the piracy enabler is always offered a deal of simply paying (assumed) arrears of subscription since they last had one or moved in. Pubs and other public places pay a public performance licence AND a commercial subscription, so they are typically sued for a lot more than assumed arrears and not offered a deal.

Disney has sued (of course) schools for showing their movies at public days (fundraisers, parents' days etc).

Retail DVDs can't be used by video libraries in most countries.

[Quoth]

Originally Posted by SteveEisenberg

As for the eBook role here, eReader prices haven't gone down as fast as I thought they would, so that they might become a preferred reading tool for lower imcome people worldwide. Bit it will come as eInks patents expire.

This is nonsense.
1) eBooks are not priced related to costs, but what the market will bear.
2) The majority of ebooks are read on phones and tablets, not eink. Even if eink based readers were 1/2 the price many would still read on phones or tablets anyway.
3) Literacy is an issue for lower income people even in rich countries. There are paper books in libraries in those countries.
4) The majority of people in the world are poor and literacy is an issue.
5) Children in households without books tend not to read books. It perpetuates.
6) Poorer people might have a feature phone but it might not support reading.
7) There are maybe close to 100,000 public domain books. Gutenberg alone has about 70,000. Those are accessible to anyone with a smart phone.

[ApK]

As someone who respects the Constitution and rule of law, I think the court was clearly right in it's decision.

However, I believe public libraries are good and important, so any author or publisher who CHOOSES to NOT make stuff available to public libraries on 'reasonable terms' (whatever they are) should bear the full brunt of public shame and market pressure until they realize that just 'cuz something is legal doesn't make it right, and when you have the freedom to chose a course of action (and they should have that freedom to choose) there are consequences for choosing Evil.
As I've said before, it's completely possible to be a successful and profitable corporation, and faithfully execute your fiduciary duties, and simultaneously NOT screw over everyone else.

[Apache]

The government should not be able to tell a business owner what he can sell his merchandise or services for. If my prices are too high, it will drive my customers to other businesses. If they are too low, it drives me out of business.
Mow in the case of a declared emergency the government has the legal right to prevent specific industries from raising prices for profiteering. That I do agree with.
Apache

[John F]

Originally Posted by Quoth

You can't publicly loan, rent or show a copy of book, music, dvd etc that's legitimately bought in most countries. The rights holder can (and will) sue you (it's a civil contract violation in most countries. You need a licence from the rights holder. If it's a physical copy you can privately loan it (but not for hire) or resell it. You can't use it for public performance either without paying a licence fee in most countries.

...

I'm surprised that this is how it works in most countries. I thought that most countries had libraries that loan books to the public. And I thought that things like Blockbuster, redbox, (dvd rental companies) were a global phenomena?

[Gardenman]

Originally Posted by issybird

Exactly.



Stealers gonna steal. The bulk of piracy occurs because people can and not because individual moral arbiters decide that something’s crossed the line of “onerosity”. It’s just a book and there are a lot of books out there; I suspect the overwhelming majority move on when they can’t get a particular book. People prefer to be honest, mostly.

Only themselves to blame seems a harsh judgment on a rights holder merely exercising those rights. I also have a sneaking suspicion that rights holders may have a better handle on maximizing profit/revenue/market share/whatever than the guy in the bleachers. Not that they can’t or don’t get it spectacularly wrong at times, but eliminating piracy entirely would probably cost much more than tolerating a certain level.

I think you are right. They do it because they can. The only way to eliminate piracy altogether is to stop publishing.

[astrangerhere]

Originally Posted by John F

I'm surprised that this is how it works in most countries. I thought that most countries had libraries that loan books to the public. And I thought that things like Blockbuster, redbox, (dvd rental companies) were a global phenomena?

Perhaps this might help:

Licensing Policy Sample: Should Your Library Have a Written Licensing Policy?

Customary Clauses in License Agreements

License agreements are open to considerable creativity by the parties involved. They are negotiable and the licensor and licensee must come to terms with a relationship that benefits each of them. However, it is important that a license agreement contain the following basic clauses:

Parties to the contract. A license agreement should state the legal names and addresses of the parties who are subject to the agreement.

Purpose of the contract. The purpose of the license agreement should be set forth. For example, to license software, photographs, or a database.

Rights and obligations of each party. The rights and obligations of each party should be set out in the license agreement. For example, the photographer is to provide the library with a high-quality version of the photo for the library to include on its website, while the library must ensure that only library patrons are allowed to view the photograph. In another example, a database vendor may provide on its server or on DVD the requested electronic database for library staff and patrons to access on the premises of the library and possibly remotely.

Usage of content. The license agreement should set forth how content can be used and how long it can be used. For example, a photograph may only be used on the library’s website for a period of one year, or an online journal may be accessed for one year on the premises of the library or through the library’s or organization’s server from anywhere in the world.

Compensation. This clause sets out how much compensation will be provided to the content provider for use of the licensed materials. It may also set out the currency, any relevant taxes, and the basis of payment.

Copyright ownership. The agreement should discuss ownership of copyright. For example, an author retains ownership in software or a database and only licenses this content to the library or organization.

Warranties and indemnities. Warranties in a license agreement set out promises that parties have made. For example, the content owner warrants that he is the owner of the content he is licensing to the library. Coupled with this warranty is an indemnity clause which sets out that should the warranties not be upheld, that the licensor or licensee will compensate the party for any resulting expenses due to the broken warranties.

The license agreement may have several general provisions relating to such things as applicable law, arbitration, and so on. The library’s or organization’s lawyer will be of assistance in ensuring that license-specific and general provisions protect the interests of the library and comply with any institutional policies.

[ApK]

Originally Posted by John F

I'm surprised that this is how it works in most countries. I thought that most countries had libraries that loan books to the public. And I thought that things like Blockbuster, redbox, (dvd rental companies) were a global phenomena?

I can only speak with direct knowledge about video rentals, not libraries, but rental companies can't merely buy a retail DVD and then rent it out. The license you get with a retail purchase doesn't allow that. They arrange (and presumably pay) for a license that allows rentals. I really never thought about whether or not a library could just go to a retail bookstore (or used bookstore...) and fill up their circulating shelves, but somehow I doubt it.
[ETA: Ah...see astrangerhere's posts above and below.]


ApK

[astrangerhere]

Originally Posted by ApK

I can only speak with direct knowledge about video rentals, not libraries, but rental companies can't merely buy a retail DVD and then rent it out. The license you get with a retail purchase doesn't allow that. They arrange (and presumably pay) for a license that allows rentals. I really never thought about whether or not a library could just go to a retail bookstore (or used bookstore...) and fill up their circulating shelves, but somehow I doubt it.


ApK

They most certainly cannot. With a physical book, the library pays a hefty price for the copy and that covers the license to lend. A lot of getting an MLS (masters of library science) here in the States is learning about how to manage those fees and curate a collection without breaking the bank.

[DNSB]

The major difference is that once a library has purchased a physical book, they can loan it out any number of times until it falls apart whereas most ebooks have a license limiting the number of loans and length of time the library can offer the ebook for loan.

For libraries in the USA, I have heard some interesting comments on the First Sale Doctrine which would appear to allow the library to purchase a physical book from any vendor and then be able to loan it out. Obtaining the ruggedized copies that libraries prefer would keep the cost higher than the retail store pricing.

[MGlitch]

Which makes sense since they’re unable to buy retail ebooks and loan them out regardless of DRM status.

Imagine trying to circumvent the rights of the creator or rights holder to control their product from release. Copyright law might need reform but I think that’s a bit much.

[Quoth]

Originally Posted by John F

I'm surprised that this is how it works in most countries. I thought that most countries had libraries that loan books to the public. And I thought that things like Blockbuster, redbox, (dvd rental companies) were a global phenomena?

They are, but they can't just buy a regular retail copy. They have to pay a library price and often other licenses.

[Quoth]

Originally Posted by DNSB

For libraries in the USA, I have heard some interesting comments on the First Sale Doctrine which would appear to allow the library to purchase a physical book from any vendor and then be able to loan it out.

My understanding of that is that may not cover rental or hire. It was purely about the ability to resell a physical item, a right taken for granted in most countries.

Buying a physical item for resale, or reselling it after use, isn't the same as hires and rentalsin most countries for most things. Like a retail car warranty might not apply to rental or taxi usages.

Similarly the EU wide consumer protection of fit for purpose, no makers defects and as advertised (1 to 6 year protection depending on product) only applies to retail sales to private persons. Not wholesale sales or rentals.

[DNSB]

Not quite right. The First Sale Doctrine allows for library lending, video rentals, selling or giving away, etc. There are quite a few court cases that have allowed all those activities. It's even been used to cover grey market imports (for instance, a couple of cases have allowed textbooks printed in other countries by an American publisher to be imported and sold without infringing on the copyright).

You do have to have ownership before the First Sale Doctrine comes into effect. You can not rent, borrow, lease, whatever.

Using your example, if I purchase a car, I have the right to rent it out, etc. If the warranty specifically excludes such activities, I would not be covered for warranty purposes though given the number of transferable warranties, it might make for an interesting case. I do know that locally leasing a car gives you coverage under the warranty. This courtesy of one manufacturer which attempted to revoke the warranty on leased vehicles and lost in court.