Re-selling DRMed ebooks: Legal or not?

[mgmueller]

Originally Posted by sony_fox

HarryT have you ever broken the speed limit? just by a few mph? Legal doesn't always mean right, and illegal doesn't always mean wrong.

In terms of your specific legal situation - speak to lawyers. It's their job to advise you. If you've got half a dozen odd books on a reader you don't want anymore, I doubt that anyone is bothered. If you are making a living from it, someone will want their fair share first. - All in My Humble Opinion of course.

Just to give some figures:
I'm mainly using Kindle 2 and Kindle DX for the moment, plus iRex iLiad for PDFs.
So i could sell, just as an example, my BeBook + about 400 Books in Mobipocket format. I'd have to check, but I guess I've paid about € 4.000 for these Books. Given my actual choice of readers, I wouldn't need the Mobipocket files anymore.
I have no idea, what anyone would be willing to pay for the books.
But I'd hope, the price for the reader at least would double.
Well worth considering (especially, if I'd do the same for my Sony 700. Or spread the Mobipocket files evenly over BeBook and Cybook, 200 on each, no doubles of course). But not at all worth any legal disputes of course.

[Shaggy]

Originally Posted by HarryT

Yes, of course I do, but are you 100% certain that they are not enforceable? Has there been a test case which has ruled this to be so? I would be a little surprised to see reputable companies imposing illegal contracts on their customers, and companies whom I genuinely consider to be the "good guys" of the industry - eg Baen - impose these terms.

Major software companies have been doing it for years (including "good guys"), and US courts have already ruled that those terms aren't enforceable. It doesn't mean that the company is breaking the law by including those terms, it just means that those terms in the contract are not legally binding. Companies continue to put them in there though, because they assume that most consumers don't know better.

Just because a company is a "good guy" doesn't mean they won't put in standard terms in a contract even though those terms are not enforceable. However, it does mean that those individual terms are null and void, even though the rest of the contract still applies.

US courts have already ruled on what defines a "sale" versus a "license". There hasn't been a case specifically for eBooks that I know of, but the precedents have already been set.

[Robertb]

Dear All:

I think you have to look at the INTENT. The intent is to prevent the passing of copyrighted books to others. This can be done by sharing the eBooks (which the PID helps prevent) and by selling the eBook Reader with the PID on it. Either one is illegal.

You have to ask yourself: "DO I Feel Lucky" (in the immortal words of Dirty Harry)? Will you likely profit and have no problem (likely yes) but IF this gets too big then you can bet there will be legal hell to pay.

I advise against it.

[rrburton]

HarryT has the right angle. Regardless of the legality of a vendor's rules if you participate in them you have agreed to them. Doesn't make sense to me to be forced to agree to illegal terms to be able to make a purchase but if you did then you did.

As far as reselling DRMd material I'm all for it. I bought the copy and should be able to transfer it to someone and they should be able to transfer and so on, just like a regular book or cd or dvd or painting or whatever. Making an unauthorized copy breaks the rules. Being that it is an electronic format and DRM really isn't mature yet makes for a whole lot of trouble. I sure hope technology advances soon. I see that the only way for this to really get worked out is that it is going to have to happen a lot and get challenged.

--edit--

Oh and one other thing I was thinking about - wouldn't one think that the cost for a limited license electronic version of a work should be less than a fully transferrable printed version?

[Elfwreck]

Originally Posted by HarryT

As I said, Shaggy, it's just my personal viewpoint. If I found myself unable to agree to a vendor's terms and conditions, then personally I wouldn't buy from that vendor.

Many ISPs and websites have in their terms and conditions, "these terms could change at any time," and they require people to agree to them before use.

This is an illegal term... certainly, nobody thinks it would be reasonable for an ISP or a website to add to its terms, "all members who had accounts before June 1, 2009, will be billed an extra $500 this month." And especially not, "all current members of the site must buy dinner for any site employee if they ever meet IRL."

Some terms are so ridiculous they can be ignored; any company that expects them to be accepted is counting on people's sense that "rules" are more important than ethical behavior. They are expecting rules-followers to encourage others to follow rules (which is reasonable on its own)... and they are counting on people assuming that the rules themselves are backed by force of law. They are expecting people to fear legal reprisal, not moral twinges, for breaking their rules.

They are engaging in open deceit of their customers... and I do not reward such behavior by agreeing to their terms.

[Elfwreck]

Originally Posted by Robertb

Dear All:

I think you have to look at the INTENT. The intent is to prevent the passing of copyrighted books to others.

But it is legal to pass copyrighted books on to others; people do it at yard sales all the time.

The *intent* is to insist on one payment = 1 reader, which is not a legally-enforceable desire. The means they are using is copyright law, which is an odd thing to stretch in that direction; it mostly works for ebooks, but as storage media get cheaper, it will have problems.

It's legal to sell a memory card packed with purchased ebooks, if they are not "illegal copies." It's unclear what an "illegal copy" is, of a book you've legally purchased.

[HarryT]

Originally Posted by Elfwreck

But it is legal to pass copyrighted books on to others; people do it at yard sales all the time.

But when you do that, you are not making a copy of the book. If you copy a file, you are making a copy. Therein lies the difference.

[=X=]

Originally Posted by Robertb

Dear All:

I think you have to look at the INTENT. The intent is to prevent the passing of copyrighted books to others. This can be done by sharing the eBooks (which the PID helps prevent) and by selling the eBook Reader with the PID on it. Either one is illegal.

You have to ask yourself: "DO I Feel Lucky" (in the immortal words of Dirty Harry)? Will you likely profit and have no problem (likely yes) but IF this gets too big then you can bet there will be legal hell to pay.

I advise against it.

I think your missing the point of the poster, he's not saying selling multiple copies of a DRM book. He's saying selling the original content.

My question to you is why is selling used eBooks illegal but selling used software legal. Both are digital content and both commonly have some sort of DRM scheme. Also what makes the selling the media with DRM scheme any more illegal/unethical than without a DRM scheme. ...it is not the DRM you are buying it's the media.

Originally Posted by HarryT

But when you do that, you are not making a copy of the book. If you copy a file, you are making a copy. Therein lies the difference.

Nobody has said selling a copy they are discussing the selling the original content. So for the sake of argument lets say they use the "move" command instead of the copy this way nobody is making a copy.

=X=

[Shaggy]

Originally Posted by HarryT

But when you do that, you are not making a copy of the book. If you copy a file, you are making a copy. Therein lies the difference.

We're not talking about selling a copy of the file, we're talking about selling the original file and not keeping a copy.

[Format C:]

Originally Posted by mgmueller

......I guess I've paid about € 4.000 for these Books. ........

The point is you didn't pay for the books.
You paid for a limited, temporary access to the contents of the books, completely out of your control.

And, yes, I believe it's just plain wrong to make a customer think he has purchased a book when he actually has not.
It may be legal, but it's really a bad thing to do.

[Terisa de morgan]

Originally Posted by Format C:

The point is you didn't pay for the books.
You paid for a limited, temporary access to the contents of the books, completely out of your control.

I'm not sure. When I buy a DRM Mobipocket book, I download it to my computer and, later, I send it to my PDA (or my cybook). I needn't to access at any other moment to the server (same with my .lit files for my computer). Where's the temporary access?

[Shaggy]

Originally Posted by Robertb

I think you have to look at the INTENT. The intent is to prevent the passing of copyrighted books to others.

You mean like a used bookstore? There's a difference between selling a book versus selling copies of a book. Copyright doesn't prevent the former.

This can be done by sharing the eBooks (which the PID helps prevent) and by selling the eBook Reader with the PID on it. Either one is illegal.

Those are two completely different things. Sharing the eBooks without authorization is clearly a copyright infringement. However, I don't see how selling an eBook Reader with a PID is illegal. Now if you keep copies of the content for yourself, then that's a problem. But selling a reader along with exclusive access to the content doesn't seem to violate any clauses of copyright that I've ever heard of.

[Shaggy]

Originally Posted by Format C:

The point is you didn't pay for the books.
You paid for a limited, temporary access to the contents of the books, completely out of your control.

It depends on where you are. US courts have said in the past that contracts which say you are buying a "license" are generally only valid if you are expected to return the product. An ebook sale means that you did pay for the book and have the right of first sale, regardless of what terms the company put on their website.

[Terisa de morgan]

Originally Posted by Shaggy

Those are two completely different things. Sharing the eBooks without authorization is clearly a copyright infringement. However, I don't see how selling an eBook Reader with a PID is illegal. Now if you keep copies of the content for yourself, then that's a problem. But selling a reader along with exclusive access to the content doesn't seem to violate any clauses of copyright that I've ever heard of.

I think this is a main point. When you buy a DRMed e-book, you do it linked to a device. So, in any case, if you sell the device, strictly, you would lose the rights over the books, which I think they would allow to the new owner.

[mgmueller]

Originally Posted by Terisa de morgan

I think this is a main point. When you buy a DRMed e-book, you do it linked to a device. So, in any case, if you sell the device, strictly, you would lose the rights over the books, which I think they would allow to the new owner.

"you do it linked to a device" : Actually, isn't it (in Mobipocket's case) 4 devices = 4 PIDs? Following that logic, I could sell 4 of my readers, each of them fully loaded with my entire library?!