Why Your e-Books Are No Longer Yours

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.

I got a better lawyer

I think I'll stick with Lessig's opinions and the surprisingly readable US Constitution.

How to sell your copy of Hary Potter only touches on the madness of paper based copyright applied to digital files. If these books are no longer mine, they are no longer the library's either. Do we really want a future where anyone and everyone can be cut off of knowledge at the flip of a switch? Where "owners" must be trusted with the raw material of history? No.

The answer to all this is very simple. The lower cost of publishing should bring lower protections and fewer created rights because fewer incentives are required. Advertising costs have not declined, so it is easier to recoup publishing investments now than ever. Worse for high cost, established publishers technology makes old laws contradictory and insane. Publishers want to make "unwet water" and outlaw the normal stuff by dominating the channels of distribution - the no real library future. We should allow people to make exact copies of almost all works and distribute them freely. It's really that easy and companies that can't live with that kind of freedom should look for a new line of honest work.

Re:I got a better lawyer^Widea

Embed advertising in ebooks, the same as in magazines and newspapers, and give the ebooks away.

Advantages

1. "Content is king" - it'll be seen
2. Targeted market
3. Reflects the lower cost of production/distribution
4. Easier to disintermediate - greater portion of the revenue ends up in the authors' pocket/purse/wallet/bank account

Fine idea.

That sounds like a great way to do things and I'm sure there are many, many others.

What I'm interested in is preserving our rights. Publishers can think of ways to make money without robbing us of the ability to help our neighbor and without assuming draconian control of information. For them to violate our rights, we must agree to be threatened and prosecuted for doing things that are not crimes. It is better to keep them from making laws that threaten us than it is to try to do their job for them.

Publishers already know how things will work in a free society. They are not stupid and this is why they fight so hard. They understand that the broadcast era is over and with it their ability to control opinion and profit from every aspect of popular culture. There will be profits but they will be distributed and much closer to the artist than they are now. The big record companies, movie companies and paper publishers are out of luck and the damage done to public institutions will follow. With freedom comes truth and from truth we can expect justice. Without freedom, expect great injustice.

Re:Fine idea.

Oh, please.

the **AA always use that point, but everybody knows that theyare the only one who are going to lose in the new system (or in this case, the publishers are).

They only sell a centralised organisation to distribute content. And there is nothing they could invent to preserve the same insane margins that they had in the old system (well, publishers may not do as much money as Universal, but still).

On the contray, authors can find inventive new ways to reach the public and leverage the increased audiance and ease of use to get as much or more revenues.

Maybe some authors won't do as much money anymore; maybe some won't even make a living and will have to find an other job. But I don't think that there will be that many of them; and by definition, they won't be missed very much.

And if you don't beleive that the new system can reward authors, look at blogs: millions of authors getting advertising money, which is based directly on their success, and will either make them some extra cash or push them to make blogging their day job.

Re:Fine idea.

And they have no authority to determine how I execute mine. I want my books in a digital format so I can read them on my laptop, my PDA, my computer at work, my e-book reader...whatever. If you want to reduce my rights just to read your book, well, sorry I ain't going to buy it and you lose a sale. Only a fool would continue to release their art using "the old ways". I've purchased quite a bit of music and literature that I started out by downloading copies the author published for free on their site. I've then either donated or purchased a print copy, if it was good. If it wasn't, I didn't waste my money. These authors typically sell more copies of their books than those who go through traditional channels, indicating the marketplace is heading in that direction. It's the marketplace that decides how products are sold, not the content producers. We just want to pay them to share in their ideas, why is that a bad thing? Yes, some people are going to take advantage of the situation and never pay for everything. Boo-hooo. When I was a waiter I learned early: some people are never going to tip, but at the end of the night, my average per table was what was most important. With a little bit of work, you can download pretty much any book on the market today, yet books are still being sold everyday. Wonder why that is?

Re:Fine idea.

Sorry, but you're completely wrong.

First of all, the only reason there is a market for the author to distribute his works is because of the artificial construct we have created in copyright. Without copyright, an author has basically two choices: sell it once or hide it. With copyright the author has two different choices: sell it lots of times according to the collective rules of society or hide it. That's basically it. Anything else (e.g. giving it away) is just a variation of those two choices.

Second, while the author is completely free within this system to do whatever the hell he or she wants, the reality is that if what he or she wants is to make money, then the market, not the artist, ultimately decides how the work is to be distributed. The only reason the market is not having its say right now is due to oligarchies such as the RIAA or because the market is relatively new (i.e. the ebooks market).

That desire is only driven by the cheapness of not wanting to pay for something you desire.

Your ad hominem argument is driven by your inability to think about and discuss the issue rationally.

Re:Fine idea.

The point is that the anti-consumer industries - that is, the industries trying to restrict more and more what someone who bought their products can do with them - forget that copyright is a government-granted monopoly and not a "natural right". Copyright stems from back in the day when "work" was stuff like smithing and tilling fields. Sitting around on your ass writing books or painting did not put food or tools into the community. But the lawmakers saw that cultural products had intrinsic value, and thus created an incentive for creators to make a living from their art but also ensured that those works would eventually enter the public domain and become part of the shared culture.

Then we got the industry (where "art" is replaced by "product") and the lobbyists (who fight to keep works out of the public domain) and now "the artists" have been superseded by organizations that cry their crocodile tears over the plight of the artist, while in reality representing soulless commercial entities who provide crappy contracts unless you are very smart or very famous and can dictate your own terms.

You are right that we "do not get to determine how someone else distributes their work" - but Congress (in the case of USA) does.

Re:Fine idea.

Yeah. Unfortunately, most people base their actions on selfishness, and try to justify them later by moralising...

While it makes sense to revise some of the ideas of copyright for internet distribution - I don't think it makes sense to advocate the wholesale destruction of 'Intellectual property' as a concept. I don't believe that cheapskates and freeloaders should define public policy.

While I have shared original music on Jamendo (for example), I also know that my day-job is dependent on the fact that I am creating value for my company by creating new ideas and writing software. These are not tangible, and in the absence of IP protection would be nearly valueless (in a monetary sense, to the company - I realise they would likely have some value to society as a whole. But then, isn't that the point of copyright - to reward those that contribute to society, and hence hopefully encourage more to contribute. If there were no IP laws, my company would likely not exist)

Re:Fine idea.

Yeah. Unfortunately, most people base their actions on selfishness, and try to justify them later by moralising...

While it makes sense to revise some of the ideas of copyright for internet distribution - I don't think it makes sense to advocate the wholesale destruction of 'Intellectual property' as a concept. I don't believe that cheapskates and freeloaders should define public policy. ... But then, isn't that the point of copyright - to reward those that contribute to society, and hence hopefully encourage more to contribute.

Sadly, you sound selfish to me. But don't get me wrong; that's perfectly fine.

Copyright is based on selfishness. The public is greedy; it doesn't care about authors for their own sake, it only cares about having more works created and published, and having those works for free, sans any kind of restriction or protection, so that it can do what it pleases with them. Copyright is simply a policy to try to satisfy that greed, by stimulating creation and publication, with as few restrictions as possible, for as little time as possible. If the benefit to the public of the stimulus is outweighed by the harm to the public of the restriction, it isn't in the public interest.

There's no intent to reward authors at all. The idea is to exploit their selfishness so that they'll do things -- create and publish works -- that are in the public interest. Copyright is no reward; it's a bribe. And it's not meant to be a generous bribe. If an author would create and publish a work in exchange for a 5 year copyright, it would be idiotic to offer him a 6 year copyright; it'd be idiotic, even if the author would prefer it.

So basically, we have a system that is geared around public selfishness, but with a recognition of the fact that immediate gratification might be quite weak, and that a delay can produce vastly greater results (like allowing cattle to mature, be milked, reproduce, and then be eaten, instead of having lots of veal but causing cows to go extinct). It functions by exploiting the selfishness of authors, who in some cases will not create and publish works without a bribe. (Those that would create and publish anyway don't deserve to be bribed, obviously)

Selfishness is the very heart of copyright. It's a system that works best -- for the public, I don't care about authors -- when cheapskates and freeloaders administrate it, since we want to maximize the net public benefit. Generosity would interfere with that.

Your position is understandable as an author; you are selfish, and want to increase what you get, regardless of the effect on the public. You wouldn't respond to copyrights at all if you weren't, so no one is upset with you. It's just important that we ignore you for the most part, and only give you the bare minimum that it will take in order to get you creating.

Re:Fine idea.

What's the link? If it's any good I'll talk about it at least, and may buy it if I really like it.

As for how you make money, why do authors deserve a perpetual income from a one-time creation?

Write a book, get lifelong monopoly rights. Write a song, get lifetime royalties but no control. Build a chair, sell it once. Design a neat house, watch everyone design their own with your neat idea while you get nothing. Do someone's accounting and have no rights to the figures. Spend time and resources compiling a factual text and find all the facts duplicated on someone's website.

It's a little arbitrary what's blessed.

Why do you, by virtue of the specific way you make marks on paper, deserve society footing the bill for your copyright protection?

Without chair-builder's monopoly rights, do carpenters stop making chairs? Without control over similar designs, do architects stop designing houses? Without protection for facts, do news agencies quit reporting?

Some profit motives (like writing games) goes away, but others remain (sponsoring a game to sell console hardware). id Software wouldn't have the incentive to write Quake, but what if Sony had them write it for the Playstation, to encourage gamers to use their product? Sony payed a lot for temporary exclusivity of Grand Theft Auto (not technologically enforced - simply because only the playstation port was released).

Mod Parent Up and REJECT BOOK ADVERTIZING!!!

Actually, don't mod parent up because he was an Anonymous Coward, but as an aspiring author I would say that anybody seeking to use their writing to shill for advertisers does not deserve to be read.

I am in support of the business model where readers can experience an author's work from a free digital download... and then vote with their pocketbook by making a "donation" if they think what they "experienced" was worth it.

That is --- "read now, pay later". I think the days of "pay now, read later" are numbered.

Then again, I am continually refining my manuscript so that it will be readable for a mass audience. As is, the compliments I get are that the "story" is awesome but the actually story-telling is lacking (which I am, of course, working on).

Re:I got a better lawyer^Widea

You've got the right to hit mute, even if ads are how the publishers make their money in the long run.

Turn it back on and clear the block list. Then block only annoying ads.

They'll be able to see viewing statistics for the ads and they should realize that some users are blocking some of the ads. Blocking the real garbage keeps from rewarding the jerks, and gives the people who play nice a better chance. If they investigate they might find that giant pulsing banners aren't popular...

Re:I got a better lawyer

"I think I'll stick with Lessig's opinions and the surprisingly readable US Constitution."

The surprisingly readable clause:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

"The lower cost of publishing should bring lower protections and fewer created rights because fewer incentives are required."
"We should allow people to make exact copies of almost all works and distribute them freely."

It doesn't at all sound like the copyright clause of the Constitution. You might reread that clause and notice the word exclusive.

Give it time

"Surprisingly readable" because the authors ain't actually lawyers yet.

The Madness Continues

Copyright was intended to provide a compromise between the needs of those creating works, and the needs of the public. The deal was that we'd give the authors a monopoly for a limited time in exchange for them releasing their works to the public domain.

What's happened since is that the creators sold out to corporations and the corporations have been throwing their weight around with our lawmakers. The term of copyright has been extended and re-extended to the point where virtually nothing is entering the public domain anymore. They've even filed (and received) copyrights on things that were previously in the public domain.

Not satisfied with their greedy taking of the public domain, they decided to move on to getting paid multiple times for the same thing. Enter "digital rights management" and such travesties as the DMCA. That effectively puts an end to the first sale doctrine and completes the process of locking up all "intellectual property" (interesting phrase, isn't it?) and completely eliminates any possibility of anything entering the public domain.

The deal was that we'd give them a exclusive right over the works for a limited time in exchange for them releasing the works to the public domain. Our corporate government has eliminated the need for the rights holders to release their works to the public domain, so the deal is broken. They don't deserve their exclusive right over the work either; the deal is broken, remember?

This will all work out in the long term, our corporate masters will do their utmost to spin this into something that's supposedly good for us. But we're not fooled, are we?

Re:The Madness Continues

I like the idea of making them pay property tax on it if they continue to insist on calling it property.

not only that but make it law that they can declare what ever value they like for their IP, BUT anyone can purchase it from them for that price.

so they can give a true value for their IP, get all the protections of regular property in exchange for paying tax on it.

the current setup is a total free fucking ride for so called IP companys.

Caveat Emptor

It bears repeating: The RIAA, The MPAA and all the other sue-the-customer organizations really really do want to make so that eventually you the consumer have NO RIGHTS, zip, zero, nadda to own anything.

Making everyone pay a fee each and every time they want to listen to or read or view something is their eventual goal.

You will own NOTHING.

You will have NO RIGHTS to view ANYTHING unless you pay their fees.

That IS the eventual goal.

Figure out how to tell this to non-librarians, non-techies

Re:Caveat Emptor

What I find most interesting about the argument over copyright is how it boils down to two groups justifying why their greed is more meaningful and important.

This is 100% consistent with current copyright law

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

Just thought this was an opportune time to reference The Right to Read [gnu.org]

reduced rights for reduced price

When I bough a record I had the 'right' to copy that record onto tape and other medium, and, normally, I kept the record as a backup. I could in fact sell the original item, under the assumption, not always true, that I did not keep the copies The same is true for CDs. I do not think anything in the constitution or copyright law gives me the right to sell the copies and keep the original or vis versa, though I know many people did. Likewise giving copies to friends was not protected behavior, but it happened.

With the VHS tape, we are not so lucky. Though VHS was relatively easy to copy, people want to put you in jail for ripping a DVD. Madness. Waste of police enforcement resources. But people are happy because frankly, in inflation adjusted terms, movies are comparatively cheap now, unless you pay the early adopter fee. In addition, studios add original content to DVDs so it not just the same old stale product.

What I can't understand is how they expect to move towards downloaded movies, that cost more than a DVD and has less content, or ebooks that have nothing but restrictions. It is not that first sale doctrine should necessarily apply. We are not buying a physical product, at least not in most cases. But If I the lowly consumer must give up some flexibility, then so should the publisher

And herein, I believe is the problem. We see overall that publishers are not making equal sacrifices. We here that studios are still charging packaging and return product percentages when there are not packaging or physical product. Likewise newspaper prices have been going up, allegedly, because of the increasing price of paper, ink, and transportation, yet many publishers refuse to leave those expensive relics behind. Evidently those items are not so expensive when compared to the loss of physical ad revenue. The NYT Times want $15 a month for the electronic edition.

So here is the issue we are going to see with E-Books. Cost of a paperback, $8. Cost of an E-Book, $10. Fine, there is a connivence fee, but if I can't resell it, if I can't put it on whatever device I want to use a the moment, I can;t return it the next day, then why the hell am I a paying the same amount for a book? To maintain the luxury corporate offices in New York, Paris, and London. I don't think so. Just like iTMS, Just like the DVD, if you are going to restrict use, give me something in return. For books the logical thing is price. No paper costs, no overstock costs, no shipping costs. I know the publishers are saying, well, a hardback is $30, so we are giving you a 60% discount. But you are not. I could wait a month or two and buy that hardback second hand for $10. Now I can't. The publisher will be getting all the money for every sales. So compromise and don't be the greedy bastards that never learn and put this country on the brink of financial crisis every 40 years of so. Sell the ebooks for $5-8 and I bet that all this will go away. If you are going to create a market where you control everything, be a compassionate fascist and give your peasants a break.

Garage Sales

Garage sales sell lots of books for oft near a dime.

I have at least a years backlog built up to read.

If people turn their backs on the cash grab, then the folks trying to grab cash will painfully learn the lesson.

Easy solution: hard copy

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.

Truth in advertising

What lets companies get away with this is that consumers don't know about it, and stores toss around words like "buy" and "sell" when the more appropriate term might be "(indefinite) lease". Let's pass a law forbidding e-book sellers from saying in their advertising "Buy this e-book!" or "We have e-books for sale!"; if they are forced to say "Buy a license for this e-book!" or "Lease this e-book!" and consumers will get the idea that something is up, and become informed.

Ditto for DVDs, music, software, or anything else where the manufacturer claims to be selling licenses.

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