Looking for info on selling 'used' ebooks

[calvin-c]

Does anybody know anything about the legal status of selling some of my old, copy-protected, ebooks? I'd include the key and leave it up to the buyer to figure out how to read it. (I'd probably tell the buyer how *I* would handle it but leave the actual decision up to him/her.)

I haven't found any case law on this so either nobody's done it or the publishers haven't sued over it. Given how eager they've been to choke off the used book trade anyway I'm inclined to think nobody's done this yet-or at least not enough to attract attention.

How about it, does anybody know of any lawsuits brought over this-or of anybody doing it without attracting a lawsuit?

Thanks.

[pidgeon92]

You should look at the TOS of the retailers you purchased the ebooks from.

[calvin-c]

That's certainly an idea although I'm not sure it'd give me a definite answer. Many cases have decided that TOS are too one-sided to be enforceable so even though they probably say I can't sell them it's still possible that I can-legally. (This is off the top of my head. I'll go take a look at the TOS that I can find. Maybe I'll be pleasantly surprised but I doubt it-those I have looked at, admittedly mostly for software, say you can't resell it. Those are the ones that I'm most familiar with-and have all, AFAIK, been shot down by the courts.) There's the question of finding the TOS for books I bought from sellers that are no longer in business, of course-like Fictionwise. And would the TOS bind the publishers who are the ones most likely to sue? I'll have to look into that, too-but in the meantime does anybody know of any situations where this has been done and the outcome? Thanks.

[BeccaPrice]

To the best of my knowledge, in the US one can't legally resell "used" ebooks.

[JSWolf]

Originally Posted by BeccaPrice

To the best of my knowledge, in the US one can't legally resell "used" ebooks.

But they are even better then new (DRM removed).

[JD Gumby]

Unfortunately, ebooks are considered software and thus considered to be a service rather than a product (like a physical book is), therefore they can get away with forbidding resale or any other transfer between people.

[JoeD]

Originally Posted by JD Gumby

Unfortunately, ebooks are considered software and thus considered to be a service rather than a product (like a physical book is), therefore they can get away with forbidding resale or any other transfer between people.

Selling of used software licenses was ruled legal in the EU last year. Not sure of the situation in the US or Canada though nor where the OP is from.

Where the copyright holder makes available to his customer a copy – tangible or intangible – and at the same time concludes, in return form payment of a fee, a licence agreement granting the customer the right to use that copy for an unlimited period, that rightholder sells the copy to the customer and thus exhausts his exclusive distribution right. Such a transaction involves a transfer of the right of ownership of the copy. Therefore, even if the licence agreement prohibits a further transfer, the rightholder can no longer oppose the resale of that copy.

Whether you could apply that to ebooks and whether you'd have to face a similar court case battle if you did, the OP would need to speak to a lawyer and make a final decision.

[calvin-c]

Originally Posted by JoeD

Whether you could apply that to ebooks and whether you'd have to face a similar court case battle if you did, the OP would need to speak to a lawyer and make a final decision.

Strange how I forget the most obvious things. I'm in the US & this is what I worried about. Not that I wouldn't prevail but that it'd take a court case to do so. Much as an IRS audit most of the cost is in the process, not the outcome. (I'm reminded of the medieval 'penalty' for a nobleman mildly displeasing the king. The king would take his court & 'visit' the nobleman for a month or two. The cost of housing/feeding/etc the court would often bankrupt the nobleman.) I appreciate the link to the EU case.

@Gumby, do you have a reference for that? Yes, software is considered a service-by the publisher. It's generally been considered a product by the courts though. And even a license for services can't (legally) prohibit resale although they can impose conditions (such as pre-approval of the buyer) that can effectively do the same thing. (Airlines have tried to block the resale of tickets but the most they've been able to do is impose a drastic 'change fee'-and get the US govt to set up a 'no-fly' list they can use to prevent anybody they want from flying. The 'no-fly' list is secret, of course, so if they tell you your name's on the list you have no way to verify that. Nice scam.)

[JoeD]

In the US you may have more trouble. Although I think resale of software that was provided on physical disks was upheld in a court case, resale of purely digital goods was not. A company lost a case for reselling mp3's (whether there was more to it, I'm not certain). It would seem likely that a similar fate would happen to anyone reselling ebooks.

Either way, even if the law says you can, you probably still can't guarantee not having a law suit filed against you. If there's plenty of precedence in your favour though, might be easier to find a law firm willing to take it on for free with a view to getting their costs back from the other side. But I've no idea how the legal system in the US works, I'm not that sure on ours tbf

[calvin-c]

Lack of precedents seems to be the problem. I'll see if I can find that mp3 case-the details might make a difference although I'm starting to think I should wait until either there's some US precedents or I find a backer willing to foot the probably legal bills. As you say I could *probably* get my legal costs back-but I'd (also probably) have to pay them up front & cases like this often take years to settle.

[Elfwreck]

Originally Posted by calvin-c

@Gumby, do you have a reference for that? Yes, software is considered a service-by the publisher. It's generally been considered a product by the courts though. And even a license for services can't (legally) prohibit resale although they can impose conditions (such as pre-approval of the buyer) that can effectively do the same thing.

Capitol v. ReDigi, pg 4:

The novel question presented in this action is whether a digital music file, lawfully made and purchased, may be resold by its owner through ReDigi under the first sale doctrine. The Court determines that it cannot.

page 6:

Because the reproduction right is necessarily implicated when a copyrighted work is embodied in a new material object, and because digital music files must be embodied in a new material object following their transfer over the Internet, the Court determines that the embodiment of a digital music file on a new hard disk is a reproduction within the meaning of the Copyright Act.

Selling the files isn't a violation of copyright. *COPYING* them is. If you want to sell digital files, make sure your first download is onto a portable drive, and sell the hardware along with the contents.

[speakingtohe]

Originally Posted by calvin-c

Does anybody know anything about the legal status of selling some of my old, copy-protected, ebooks? I'd include the key and leave it up to the buyer to figure out how to read it. (I'd probably tell the buyer how *I* would handle it but leave the actual decision up to him/her.)

I haven't found any case law on this so either nobody's done it or the publishers haven't sued over it. Given how eager they've been to choke off the used book trade anyway I'm inclined to think nobody's done this yet-or at least not enough to attract attention.

How about it, does anybody know of any lawsuits brought over this-or of anybody doing it without attracting a lawsuit?

Thanks.

I am fairly certain that it is not been decided legal in any court or it would be highly publicized on mobileread at least.

I am sure many have done it on a limited basis without attracting attentio, but how would anyone find out if they have attracted no attention?

If it becomes legal, I would think the market would be flooded the very next day, making it hard to justify the time and effort spent by the seller. A few people would get a good price, but buyers and sellers would be seeing possibly thousands of copies of the same books for sale and would wait for the price to drop below a dollar. I know I would.

Then there would have to be some sort of policing system or unbreakable DRM to ensure all sales were of legal books.

If you are convinced that you have a moral and legal right to sell your books, and can do it without attracting attention, well we would all be curious to see how you make out.

Out of curiousity, What is the value of the books you want to sell and how would you go about it given the current legal status?

I am not a prospective buyer, I buy few books at present, use the library a lot and PD books, and maybe spend $20-$30 a month on books if that.

I would not uy a random selection of say 50 books at more than 10% of the original cost even if I was convinced the transaction was legal. I might pay more for a book I wanted, but would not buy it used unless tha transaction was declared 100% legal in a court of law in my country.

As I see itif it becomes legal, the market is saturated and if it is illegal, both the risk of prosecution and the time and effort to find buyers make it impractical. I am assumig you are selling only one copy of each book)

Personally, I would look at other ways to make my reading cheaper, such as library books, freebies, coupons and sales.

Helen

[Katsunami]

The problem with reselling stuff that is purely software is that it can never be guaranteed that the product will actually be sold. "Selling" means that someone else gets the product, for a price, and it's guaranteed that *you* don't have the product anymore.

I can sell you a fully DRM-ed copy of a file, and STILL keep an un-DRM-ed version for myself.

If selling ebooks would be legal, I'd be very happy. I'd buy a lot of books, download and copy the files, de-DRM the copies, and sell the originals for half price. Permanent 50% profit.

[HarryT]

Originally Posted by Katsunami

If selling ebooks would be legal, I'd be very happy. I'd buy a lot of books, download and copy the files, de-DRM the copies, and sell the originals for half price. Permanent 50% profit.

That would be copyright infringement. If you sell it, you can't also keep a copy for yourself.

[Katsunami]

Originally Posted by HarryT

That would be copyright infringement. If you sell it, you can't also keep a copy for yourself.

I know, I'm not an idiot. The point is that it can never ever be checked if I *did* keep a copy for myself. That's the reason why selling software and ebooks is impossible in most countries.