Re: Renting Ebooks

[HarryT]

Originally Posted by nekokami

Are you thinking of challenging the law? The EFF might help. I'd love to see this go to court.

When you download an eBook, you buy it from a site which specifies the terms and conditions that it is selling it under. If you are made aware of those conditions before purchase, that's the end of the matter - if you buy the book, you are agreeing to those T&Cs. It's a contract, like any other.

The only basis on which this could be challenged would be to argue that it was an unreasonable contract (eg, in the UK the relevant law would be the "Unfair Contract Terms Act"). Are the licensing terms of sites like Connect, MobiPocket, or Fictionwise really "unreasonable" in a legal sense? I don't believe they are.

At the end of the day, if you can't accept the T&Cs then you shouldn't buy books from that site.

If somebody were to succeed in getting a court to rule that you did indeed "own" an eBook and could do whatever you wanted with it - give copies away to anyone you wanted, etc - the result would inevitably be that publishers would immediately stop selling eBooks. Does anybody really want that to happen?

[nekokami]

Originally Posted by HarryT

Is this anything to do with the law?

Yes, because the "Doctrine of First Sale" in US law says you're allowed to resell copyrighted content (not extra copies, obviously, but your own copy). There has been considerable speculation that even the software EULA agreements may not be legal, and they can involve patents as well as copyrights.

There are cases where it's not legal for someone to give up rights as part of a contract. As a condition of employment in the US, sometimes employers will try to force a "non-competitive" clause on employees. Generally these don't hold up in court. The right to seek employment isn't one that can be signed away as part of a contract.

We can argue the ethics as a matter of opinion, and I know your opinion on this and mine are not in agreement. But the law is determined by the courts, and this is a case that hasn't yet been tested fully. Neither of us knows the answer (and the answer would quite possibly differ in our respective countries, as well.)

[HarryT]

Originally Posted by nekokami

Yes, because the "Doctrine of First Sale" in US law says you're allowed to resell copyrighted content (not extra copies, obviously, but your own copy).

But does that still apply if book downloads are licensed rather than sold? In that case you would never have "owned" the book and hence couldn't re-sell it, could you?

There are cases where it's not legal for someone to give up rights as part of a contract. As a condition of employment in the US, sometimes employers will try to force a "non-competitive" clause on employees. Generally these don't hold up in court. The right to seek employment isn't one that can be signed away as part of a contract.

Sure - I completely accept that. It's the same in this country; hence the "Unfair Contract Terms Act" I mentioned previously.

We can argue the ethics as a matter of opinion, and I know your opinion on this and mine are not in agreement. But the law is determined by the courts, and this is a case that hasn't yet been tested fully. Neither of us knows the answer (and the answer would quite possibly differ in our respective countries, as well.)

I respect that you hold a different view, and I know that you respect my point of view. My concern is that someone could end up destroying the entire eBook industry by getting an ignorant jury to agree to something that they don't really understand.

[nekokami]

Originally Posted by HarryT

I respect that you hold a different view, and I know that you respect my point of view. My concern is that someone could end up destroying the entire eBook industry by getting an ignorant jury to agree to something that they don't really understand.

It's a fair concern. I'm not sure I agree that it would destroy the eBook industry to have DRM brought down, though. Baen is doing pretty well without it, as are several publishers in the romance genre, apparently. I know the publishers want DRM, but that doesn't necessarily mean it's in their best interests to have it. It's expensive and it may be blocking sales they would realize if they dropped it.

I confess I don't feel I know the answer to this one, though.

Regarding the law around licensing, the question is whether the license restriction is legal. I don't know. I'm well out of my depth in terms of the law in this case. I've read that there is some question on this matter, but I don't know how accurate that is.

[HarryT]

Originally Posted by nekokami

It's a fair concern. I'm not sure I agree that it would destroy the eBook industry to have DRM brought down, though.

No, I wasn't talking about DRM, but about whether or not the license restrictions imposed by companies like "Fictionwise" are "legal" or not - ie the conditions that (for example) you can't resell copies of the book.

Someone said recently that the owner of Fictionwise said that he sells 10x as many DRM-free books as DRM-ed ones. What's going to happen if it suddenly becomes legal to give away copies of DRM-free books? The most likely outcome, I suspect, is that publishers would stop producing them.

[nekokami]

Whoops, I wasn't trying to say I thought it should be legal to give away copies -- only to sell or give away your only copy.

[JSWolf]

If I was to break the DRM on a LIT file because of the exceptions to the DMCA that allows me to, is it legal then for me to sell this LIT format book as long as I don't keep a copy?

[Nate the great]

Originally Posted by JSWolf

If I was to break the DRM on a LIT file because of the exceptions to the DMCA that allows me to, is it legal then for me to sell this LIT format book as long as I don't keep a copy?

It's possible. Where did you buy it?

If you bought it from fictionwise, then no.

[JSWolf]

Originally Posted by Nate the great

It's possible. Where did you buy it?

If you bought it from fictionwise, then no.

Does it matter where I bought the LIT format file from? DMCA exceptions says I can break the DRM since the DRM prevents the read aloud feature from working.

[Nate the great]

Originally Posted by JSWolf

Does it matter where I bought the LIT format file from? DMCA exceptions says I can break the DRM since the DRM prevents the read aloud feature from working.

If you bought it from Fictionwise then you agreed that you cannot sell it.

I think that really sucks. But until a lawyer explains to me why the agreement is not enforcible, I will not break it in a way they might notice.

[rlauzon]

Originally Posted by Nate the great

I think that really sucks. But until a lawyer explains to me why the agreement is not enforcible, I will not break it in a way they might notice.

Groklaw has an interesting take on this issue today.

Basically, according to a recent case, DRM/copyright cannot trump fair use and that fair use is a right.

PJ really doesn't come to a conclusion, but she does raise some very interesting questions.

IHMO (IANAL), it would seem to be that DRM/copyright cannot trump first sale rights too. So I would expect to see more sites that "sell" eBooks to have large notices along the lines of "You are not buying this eBooks. You are licensing it under these terms (link to terms) for a limited time yadda, yadda, yadda..."

[nekokami]

I think it's an untested area, at least in US law. It's also quite difficult to be sure you have eliminated all copies (do you back up your hard drive?) even if you intend to. A private sale, e.g. to someone you know, probably wouldn't attract any more attention than breaking the DRM for private use would. I wouldn't advertise on eBay or any other public forum. Your risk tolerance may vary.

[Nate the great]

I just spent an hour going through the "Terms of Usage/Terms of Sale" for Itunes. Admittedly, they do not sell ebooks, but what they do sell is very similar in concept. Caveat: I have not actually bought anything from them so I do not know what else is agreed to when the "Buy" button is clicked.

According to Itunes (section 13, paragrapgh e):

e. Album Cover Art.
...
You may only access album cover art (to the extent available) for music for which you are the lawful owner of a legal copy...

Apple seems to think you can indeed purchase and own a music file. If that is so, then why can't you own an ebook?

I do not claim to have any more rights over an ebook than I would over a pbook. I simply know that when you purchase something, unless otherwise stated, you own it. This applies to pbooks. Apple apparently believes it applies to the music they sell you. I would argue that it also applies to ebooks.

Fictionwise is the only one of the 4 websites I have checked (so far) that specifically says it is not selling you ownership. In fact, this license statement is in all of the scifi emagazines I got from there:


NOTICE: This eBook is licensed to the original purchaser
only. Duplication or distribution to any person via email,
floppy disk, network, print out, or any other means is a
violation of International copyright law and subjects the
violator to severe fines and/or imprisonment. This notice
overrides the Adobe Reader permissions which are
erroneous. This eBook cannot be legally lent or given to
others.

Obviously, I do not own that copy of the magazine. But that is only because the Fictionwise website terms of use specifically said that ownership was not transferred. Otherwise, I would expect it to be transferred like it would if you bought a pbook.





That being said, it is almost midnight for me and I am going to go to bed. What I wrote here may be slightly loony; I cannot tell at the moment. If there is an error in my post, please be kind enough to send me a PM so I can fix the post.

[HarryT]

Originally Posted by JSWolf

Does it matter where I bought the LIT format file from? DMCA exceptions says I can break the DRM since the DRM prevents the read aloud feature from working.

What matters are the sales conditions of the site where you originally bought the book. If those sales conditions say "you can't resell it" then you can't resell it.

[Liviu_5]

Originally Posted by HarryT

What matters are the sales conditions of the site where you originally bought the book. If those sales conditions say "you can't resell it" then you can't resell it.

I do not think that's quite correct. Personally I do no think that any e-book (or e-music whether from iTunes or not) can be resold in a public transaction.

That is the nature of the medium and until a commercial secondary market in e-books or e-music appears that's how it is. If I have a paper book or cd, I can list it for sale on Amazon, Ebay or whenever without worrying about anything. With anything e, whatever you believe, you cannot list it anywhere publicly to sell. Sure there are dodgy sites and Ebay sometimes accepts dodgy listings, but try and make a business out of this and see what happens, while lots of people make a living by selling used books, cd's and the like on Amazon, Ebay, Abe and similar places...

The rest is just quibbling of "how many angels on the head of the pin" type. When there will be a public market I can go with my already bought e-content and resell it I would reconsider.

This being said, I do not understand why this is such a big deal. Most used books unless collectibles have negligible value in the market anyway, and there cannot be such a thing as a used e-book by definition. What you would do to make it used, extract a bunch of electrons from the 50'th line?

Personally I could not care less that I cannot resell my ebooks, and about sharing I have no qualms to do it with family and no reason to do it with strangers or publicly; what I care about is the ability to read that ebook whenever I wanted and on whatever device I want, and that I can be sure that with minimal care from my part this will be true indefinitely in the future.