It's not the package, it's what's in it that counts

[JDK1962]

An interesting discussion over at Teleread (http://www.teleread.com/chris-meadow...oks-work-redux) has got me thinking about some of the legal issues around p-books and e-books. Since I'm a software developer, and not a lawyer, this falls under the heading of idle speculation.

When a consumer purchases a physical book, it's a single "buying a book" transaction. From a legal perspective, it seems to be two:

(1) The purchase of a physical artifact, and
(2) the licensing of the content.

Legally, the rights that the consumer has seem to be wrapped up with the physical artifact.

So, when it comes to e-books, there's no physical purchase, only licensing of content (hence the statement by Amazon and others that e-book buyers are only licensing content).

Obviously, re-selling p-books is legal, in that one has a right to sell the purchased physical artifact. The licensed content comes along for the ride. But logically, it doesn't feel quite right...when I "buy a book," the point of the transaction is acquire a copy of the content for personal use. So when I re-sell, the thing of value that I'm selling is access to the content. To say that my right is to sell the artifact and not the content seems...ummm...disingenous.

The Teleread thread is about the (il)legality of reselling e-books, because the rights issue gets even more stark. There's no physical artifact, so (in law) no right to re-sell.

So is the law simply out of step, or behind, on this issue?

Publishers, it seems to me, are trying to have it both ways. By pricing p-books and e-books at the same level, they're saying that content is what they're selling and that packaging is irrelevant. But by stripping the consumer of the right to re-sell, share, pass on, or donate the book, they've created a virtual artifact that is "less than" it's physical equivalent (and so the overall cost of an e-book is actually higher).

Since the laws that get made seem to be heavily weighted toward (or are actually written by) those groups with enough money to pay lobbyists and purchase influence, I've no faith that legal thinking will reflect any sort of fair outcome. But I'm extremely curious about what a truly fair outcome would look like.

[taustin]

Originally Posted by JDK1962

An interesting discussion over at Teleread (http://www.teleread.com/chris-meadow...oks-work-redux) has got me thinking about some of the legal issues around p-books and e-books. Since I'm a software developer, and not a lawyer, this falls under the heading of idle speculation.

When a consumer purchases a physical book, it's a single "buying a book" transaction. From a legal perspective, it seems to be two:

(1) The purchase of a physical artifact, and
(2) the licensing of the content.

Legally, the rights that the consumer has seem to be wrapped up with the physical artifact.

So, when it comes to e-books, there's no physical purchase, only licensing of content (hence the statement by Amazon and others that e-book buyers are only licensing content).

Obviously, re-selling p-books is legal, in that one has a right to sell the purchased physical artifact. The licensed content comes along for the ride. But logically, it doesn't feel quite right...when I "buy a book," the point of the transaction is acquire a copy of the content for personal use. So when I re-sell, the thing of value that I'm selling is access to the content. To say that my right is to sell the artifact and not the content seems...ummm...disingenous.

The Teleread thread is about the (il)legality of reselling e-books, because the rights issue gets even more stark. There's no physical artifact, so (in law) no right to re-sell.

A lot of companies say that in their terms of service, but it isn't necessarily so. Not all such provisions are enforceable. It varies considerably by state (and more so, of course, in other countries), complicated by the fact that copyright is federal, and so far as I know, there's virutally no case law that applies directly to ebooks.

In the world of software, though, click-wrap licenses are of dubious enforceability in many states. In California, for instance, there is a ruling (Softman v. Adobe) that says that if the consumer a) pays a one time fee, and b) gets indefinite use, then it's a sale of goods, not a license, no matter what the contract says (because coypright are governed by copyright law, not contract law). And if it's a sale of goods, the first sale doctrine applies, and that means you can resell the copy you bought, even if the license specifically prohibits it. (And this was over bundled software, arguably the strongest case there is for the restrictions). Other states have, from what I understand, ruled in other ways, and federal courts haven't really gotten in to it that I know of.

Originally Posted by JDK1962

So is the law simply out of step, or behind, on this issue?

Very much so.

Originally Posted by JDK1962

Publishers, it seems to me, are trying to have it both ways.

Very much so. The market will settle it, one way or the other, however, eventually. Those who do not offer what the consumer wants will be driven out of business by those who do.

Originally Posted by JDK1962

By pricing p-books and e-books at the same level, they're saying that content is what they're selling and that packaging is irrelevant. But by stripping the consumer of the right to re-sell, share, pass on, or donate the book, they've created a virtual artifact that is "less than" it's physical equivalent (and so the overall cost of an e-book is actually higher).

My gut says that the first sale doctrine should apply to ebooks. But my head keeps pointing out that it's impossible to do so. When you sell someone a used book, you sell them your copy of the book. But with an ebook, unless you sell them the actual book reader, it is literally impossible to sell them your copy, you can only sell them another copy that you have made. And the process of making that copy does not inherently destroy your copy. Any process that does inherently destroy your copy when you pass it on is a DRM process, and that's rather more offensive to most of the market than not being allowed to sell it at all, if only because it's destined to interfere with legitimate use more often than prevent piracy. I'm not clever enough to figure out the answer to this conflict, and I'm not sure anybody else is either.

Originally Posted by JDK1962

Since the laws that get made seem to be heavily weighted toward (or are actually written by) those groups with enough money to pay lobbyists and purchase influence, I've no faith that legal thinking will reflect any sort of fair outcome. But I'm extremely curious about what a truly fair outcome would look like.

That may seem to be the case, but real life is far more complicated than that. For instance, despite several times as many companies publicly supporting SOPA than opposing it, including with donations, the House just killed it because of the public controversy. And no law enforces itself; the courts have to interpret it, in the context of other laws, and the constitution. It's often impossible to predict how things will work out in the real world.

But whatever restrictions the law allows, unless it mandates them (and it won't), the market will decide for itself what it will tolerate. For every agency model publisher that would install a reading meter in your optic nerve and charge you by the word, there's a hundred people like Jim Baen, who get it, and would love to expand their market share by selling books with no copy controls whatsoever. If that's what people want, that's what they'll buy, and the less restrictive sellers will propser, while the more restrctive ones will decline.

[Steven Lyle Jordan]

Actually, consumers accept more restrictive product markets all the time. All that market has to do is offer them something they cannot get through less-restrictive markets. Perfect example: Cable (or satellite) television, much more restrictive than broadcast TV, but in offering hundreds of channels, became preferred over broadcast TV by most consumers.

With ebooks, Amazon would be a good example of a more restrictive marketer that wins by tying their ebooks into a seamless delivery system (the Kindle) and well-ordered infrastructure to facilitate shopping and purchasing. Amazon's system single-handedly catapulted ebook use into high gear, a valid proof of concept.

Companies know that consumers don't always ask for what they really want, will often settle for "the closest thing" to what they want, and that well-done packaging and marketing can sell almost anything. This puts a lot of wiggle-room in the ultimate outcome of the ebook market: It can easily be swayed by the right marketing efforts directed at consumers, not necessarily the consumers' actual desires.

[HistoryWes]

Originally Posted by JDK1962

An interesting discussion over at Teleread (http://www.teleread.com/chris-meadow...oks-work-redux) has got me thinking about some of the legal issues around p-books and e-books. Since I'm a software developer, and not a lawyer, this falls under the heading of idle speculation.

When a consumer purchases a physical book, it's a single "buying a book" transaction. From a legal perspective, it seems to be two:

(1) The purchase of a physical artifact, and
(2) the licensing of the content.

Legally, the rights that the consumer has seem to be wrapped up with the physical artifact.

So, when it comes to e-books, there's no physical purchase, only licensing of content (hence the statement by Amazon and others that e-book buyers are only licensing content).

Obviously, re-selling p-books is legal, in that one has a right to sell the purchased physical artifact. The licensed content comes along for the ride. But logically, it doesn't feel quite right...when I "buy a book," the point of the transaction is acquire a copy of the content for personal use. So when I re-sell, the thing of value that I'm selling is access to the content. To say that my right is to sell the artifact and not the content seems...ummm...disingenous.

The Teleread thread is about the (il)legality of reselling e-books, because the rights issue gets even more stark. There's no physical artifact, so (in law) no right to re-sell.

So is the law simply out of step, or behind, on this issue?

Publishers, it seems to me, are trying to have it both ways. By pricing p-books and e-books at the same level, they're saying that content is what they're selling and that packaging is irrelevant. But by stripping the consumer of the right to re-sell, share, pass on, or donate the book, they've created a virtual artifact that is "less than" it's physical equivalent (and so the overall cost of an e-book is actually higher).

Since the laws that get made seem to be heavily weighted toward (or are actually written by) those groups with enough money to pay lobbyists and purchase influence, I've no faith that legal thinking will reflect any sort of fair outcome. But I'm extremely curious about what a truly fair outcome would look like.

Very well put.