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Why Your e-Books Are No Longer Yours 295

Posted by kdawson
from the i-am-not-a-lawyer-but-they-are-or-at-least-will-be dept.
Predictions Market sends us to Gizmodo for an interesting take on the question: when you "buy" "content" for Amazon's Kindle or the Sony Reader, are you buying a crippled license to intellectual property when you download, or are you buying a book? If the latter, then the first sale doctrine, which lets you hawk your old Harry Potter hardcovers on eBay, would apply. Some law students at Columbia took a swing at the question and Gizmodo reprints the "surprisingly readable" legal summary. Short answer: those restrictive licenses may very well be legal, and even if you had rights under the first sale doctrine, you might only be able to resell or give away your Kindle — not a copy of the work.
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Why Your e-Books Are No Longer Yours

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  • by tomhudson (43916) < ... <nosduh.arabrab>> on Saturday March 22, 2008 @09:04PM (#22833356) Journal
    Last part of url: http%3A//members.on.nimp.org/
  • Re:Not only that... (Score:2, Informative)

    by Adradis (1160201) on Saturday March 22, 2008 @09:05PM (#22833360)
    Nimp.org link, yet again.
  • by CajunArson (465943) on Saturday March 22, 2008 @09:24PM (#22833426) Journal
    Courts have expressly not extended doctrine of first sale to electronic files like mp3's and it would make perfect sense to extend that to ebooks. The thing to remember about first sale doctrine is that you do NOT own the "content" of a book you purchase. If I go out and buy The DaVinci Code I have 0 ownership interest in the story. What I DO have an ownership interest in is the actual physical book and the ink printed in that book. I can go out and resell the book or give it away and there is nothing the copyright owner can do about it (famous early case from 1909 about a publisher that sued Macy's for selling its books below the price the publisher wanted. Copyright had nothing to do with the eventual sale price because first sale doctrine meant the publisher lost control of the physical books after it had made the initial sale, Macy's was not bound by further contractual obligations either).
          However, looking at statute there are exceptions to first sale. One is rental of music: Ever notice how you can get a movie from Netflix but not a CD? The same applies to software (with a narrow exception for videogames so places like Gamestop can stay open). This rule goes way back to the '70's & 80's when it was pretty obvious that music "rental" places were just fronts for mass copying of music. You'd go in, rent a record, and there would be blank tapes by the checkout and a wink & a nudge. See Section 109 [copyright.gov] of the copyright act for more on this.
          In the digital age, the same reasoning that applies to the exceptions to first sale doctrine has been extended to digital downloads. Here the actual instantiation of the copy is merely a set of bits sitting on a drive. It is too difficult to be able to make an actual "sale" of the instance when transferring it over the Internet. Before you say "but I delete the file after I send it!", the courts considered that and do not buy the argument. That's why the article notes that selling your entire eBook would count: you are transferring a physical manifestation of the copyrighted material instead of trying to play games with moving bits around.

        Where CAN there be limitations on sales of actual physical items: Well, most of the limits in the article have nothing to do with copyright. Instead, they are contractual limitations which you agree to when you purchase the eBook. Copyright gets confused with many other kinds of law, but don't forget once you are in privity (aka you make a deal to buy a book from Amazon) then the contract will likely be much more relevant than generic Copyright law.

    Disclaimer: IANAL but I am a 2L in copyright class right now.
  • The Right to Read (Score:5, Informative)

    by Anonymous Coward on Saturday March 22, 2008 @09:26PM (#22833438)
    Just thought this was an opportune time to reference The Right to Read [gnu.org]
  • by MasterC (70492) <cmlburnett@gm[ ].com ['ail' in gap]> on Saturday March 22, 2008 @10:25PM (#22833658) Homepage
    The Kindle is $399. The books listed on the Kindle page [amazon.com] are $9.99 each. Picking a random book: Sue Grafton's T is for Trespass. Kind price: $9.99 [amazon.com]. Hardcover price: $17.79 [amazon.com].

    (Something I find extremely interesting is Amazon compares the kindle price to the hard cover list price ($26.95) AND does not link to any other versions of the book, but the hard cover sure does. It seems they are intentionally wanting to give the false sense of "what a deal!" and making it harder to jump to a non-kindle version.)

    $7.80 may look like a lot (Amazon will tell you $26.95-$9.99=$16.96 ...more than double the market price difference) but is having the ebook worth the difference? Grafton's previous book -- S for Silence -- is $7.99 for paperback ($4.24 if you buy 3rd party to Amazon) and $6.39 for Kindle (again, Kindle page doesn't list other editions). A whopping $1.60 difference. $1.60 to [legally] be permanently locked to that copy with your Kindle with no rights to sell that copy to any one, nor transfer to other devices, etc. (I don't think I need to list them).

    Is $1.60 (or -$2.15 if 3rd party) or $7.80 worth it to switch to Kindle? Not to me, so I'll stick to being a tree-killer. I won't ever switch to ebooks that trap my money and ability to do as I please.

    (I also don't own HD DVD (hah!) nor Blu-Ray and never will until I can play them under my OS of choice, but I digress.)

    Honestly, if it comes down to DRM books and DRM movies where I can't read/play on the device of my choice then I'll happily give them up. But it won't be for long because the time will come when good creators of books and film will not be hamstrung by those who demand DRM. That is if the recent digital "experiments" by known musicians are of any indication.
  • by erroneus (253617) on Saturday March 22, 2008 @11:20PM (#22833904) Homepage
    You don't read much fan fiction do you? There's a lot of written work out there that is written by individuals and put out there free of charge; small stuff and large stuff alike. Some people just want to be read and some people write because they enjoy it. Not every 'artist' does it for money and it could be argued that it's not art if it's done for money in the first place. (Kind of like prostitution isn't making love...)
  • by techno-vampire (666512) on Saturday March 22, 2008 @11:32PM (#22833946) Homepage
    What's happened since is that the creators sold out to corporations and the corporations have been throwing their weight around with our lawmakers.


    No, that's not what happened. What did happen is that the US became a party to The Berne Convention, [wikipedia.org] which specifies a minimum term for a copyright of the life of the creator plus 50 years. I won't say that various corporations aren't happy with this, but the idea has been part of copyright law in Europe for over a century.

  • by nurb432 (527695) on Sunday March 23, 2008 @09:04AM (#22836148) Homepage Journal
    Don't forget that at any time ( if you are using some sort of online-DRM system ) that what you purchase a right to read for can be yanked from you in an instant.

    All it will take is one judge to declare the 'book' violated some copyright and it suddenly disappears off readers all over the country. Or how about the government decides its 'forbidden information', once again causing 'books' to disappear. ( after reporting back who had the copy for further investigation. how dare they want to learn about the forbidden fruit ). Your so called contract is null and void at that point and you possess something that is considered illegal.

    Oh, and that little clause in all contacts that lets THEM change the terms... "now we are moving to a pay pre read model, id you don't accept this agreement all previous contracts are null and void" and then once again, poof goes your 'book'.

    No thanks, ill keep my paper thank you very much. ( even self-scanned unencumbered books will eventually get bit by the 'not licensed to view' DRM bug once they lock all machines down to were ALL content must be authorized by a central body or its rejected and reported )
  • by Garwulf (708651) on Monday March 24, 2008 @10:29AM (#22845318) Homepage
    Sorry that I'm not replying in a specific thread, but I'm seeing a lot of misconceptions in this discussion, and I want to hit as many of them as possible with just one post. I am a published author, as well as an editor, and I am now also the owner of a small publishing company that recently put out its first book - so understanding the ins and outs of this is very important to what I do.

    First of all - the issues with e-books and first sale doctrines. When it comes down to it, copyright law is in regards to how copies are made (while this does involve the public to some degree, it's far more about how creative artists deal with their distributors and keeping one group from ripping off the other). If you buy a print book, and then resell it, or give it away to somebody, you are not making a copy. However, that's not something you can do with an e-book - if you give a copy of a Kindle book you just bought to a friend, you are actually making a copy, and that does violate copyright law. So that's where the problem lies. It is not a conspiracy to take people's rights away.

    (Think of it like this - it's the difference between buying a book and giving your friend a copy, and buying a book, photocopying it, and then giving your friend the photocopy.)

    Second - where e-books are going. A few people here are talking about how DRM on e-books are going to wipe out libraries. This is complete garbage. It is absolute nonsense in part because libraries are protected under copyright law in most countries (even in the United States, the "Sonny Bono" act had special dispensation for libraries). But, it is mostly nonsense because in order for e-books to wipe out libraries, the e-book would first have to wipe out the print book, and that just isn't going to happen.

    I'm speaking from experience here - e-books are really a lot like radio. They're great for getting samples out, but if somebody really likes what they're reading, they want a copy of it on paper. The last time people were talking about how books were going to go digital, I was there in the ranks of e-book authors in the great "e-book revolution." And I had absolutely everything going for me - I was the author of Diablo: Demonsbane, the e-book launching the entire official Diablo fiction line, and Diablo II had sold millions of copies, which back then was almost unheard of for computer games. Advertisements for Demonsbane were showing up on Battle.net, so pretty much every Diablo multiplayer fan had at least some inkling that the book existed.

    To this day, eight years later, I don't think the book sold more than 1,000 copies. And I was one of the e-book authors who did WELL - about the only thing I didn't have going for me was that I wasn't Stephen King.

    By 2001, the e-book revolution had fizzled, and a bunch of publishers, Pocket Books included, stopped releasing them. And Demonsbane was released in every read-only format you could get, including Acrobat Reader. And it wasn't DRM that killed it, believe me. I've had a lot of time to think about why the print book didn't even notice the e-book assault was happening.

    Frankly, it all comes down to barriers to entry. If you think about it, most of the technology that has caught on has been reducing barriers to entry for something. Take music, for example. We started off with the record, and then moved to the tape, which was smaller and more compact. Then came the CD, which had no moving parts. And now there's the MP3, which doesn't require a CD. But there was always a barrier to entry in music. That's not the case with a print book.

    A print book requires only the ability to read, your eyes, and a light source. An e-book requires more - you need a power source, and a reader of some sort, be it a computer or a Kindle, etc. The readers are subject to obsolescence, as are the file formats. So, instead of removing barriers to entry, an e-book raises them.

    Now, an e-book does have its purposes, and if you're on a long trip, it is far more handy to

If a 6600 used paper tape instead of core memory, it would use up tape at about 30 miles/second. -- Grishman, Assembly Language Programming

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