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More on Amazon’s used e-books controversy

Posted By Marilynn Byerly On February 19, 2013 @ 3:00 pm In Amazon,ebook,library | 12 Comments

[1]Digital products like e-books are licensed—not sold—to a buyer, so they can’t be legally resold, shared, or loaned. (See my article on e-books and the first sale doctrine [2] for more information.)

A group called the Owners’ Rights Initiative [3] wants to change that. The ORI believes that the owner of a digital book should be allowed to sell it used.  Members of this group include some library trade groups, used resellers of paper books, and eBay.

Some readers consider this a good thing, because they can get cash back on books they’ve read, in the very same way many readers do with paper books.

But is it a good idea?

The answer is a resounding ‘no.’

* * *

[4]The biggest problem with used e-books is e-book piracy. Some think that cheaper books mean less reason to pirate books, and that’s true to a certain extent. But used e-books mean that authors and publishers will no longer be able to prove that an online copy has been stolen.

Right now, publishers and authors license their books to specific resellers/distributors like Amazon Kindle, B&N’s Nook, and Smashwords. If a book is available at any other site, the publisher and author know instantly that that book is pirated, and they assis the police in taking these sites down. These sites, by the way, are fairly common, and because some really do look like legitimate bookselling sites, the consumer is often not aware that they are buying stolen books. Some of these sites actually sell the books in question, while others are pure scams that simply steal credit card information and install viruses on their victims’ computers.

If e-books are sold used, a scam site will be able to fly under the legal radar.

Pirate sites will claim that their books are being given away for free by legal owners, so they can continue their dispersal of illegal copies.

If e-books are sold used, and a site or individual can sell thousands of copies of the same e-book by saying that they are selling one used, there will be no way for the author or publisher to prove this. This will essentially make book theft a crime that can’t be punished.

Even readers who want to do the right thing by buying legally won’t be able to tell who is a legitimate reseller and who isn’t.

Readers looking for bargains will buy illegal books instead of legal ones. The profit margin for authors and publishers, which is already small, will plummet to the point that publishing will no longer be profitable for anyone, and those who actually make the money will have done nothing to create the books in question.

Publishing will be dead, and the e-book zombie apocalypse will be here.

Ironically, the ORI [3] library trade association members who are angry that some publishers are making it harder for them to buy and loan e-books will be just as devastated by these events. With e-books available online for next to nothing—or even free—libraries will have even less value for users and tax payers. The eventual result? They may lose major funding. They may eventually disappear.

These library groups, in fact, may find their own members lurching around with the rest of us as the e-book zombie apocalypse becomes real.

Author’s note: For more information on this subject, read Paid Content’s “The right to resell: A ticking time bomb over digital goods [5].”

This article first appeared on author Marilynn Byerly’s blog,  Adventures in Writing [6].


12 Comments (Open | Close)

12 Comments To "More on Amazon’s used e-books controversy"

#1 Comment By Iulian Ionescu On February 19, 2013 @ 3:27 pm

I agree with you. However, if they ever do it, should the ‘used’ e-books mimic used books? I think so, so they should have doodles, missing and torn pages and marker streaks that sip through three pages :)

Thank you!

Iulian

#2 Comment By Frank Lowney On February 19, 2013 @ 4:06 pm

If I purchase a physical book, I own that copy. If I subsequently transfer ownership of that copy by any means, I am not infringing copyright. However, if I photocopy that book and transfer ownership of that illicit copy, I am infringing the copyright. This is all well established in law and precedent. Note that authors and publishers of the past only grudgingly agreed to this. Over the years, they mounted one assault after another against First Sale only to be repelled in the courts.
Now comes digital media and, with it, the opportunity to destroy the hated secondary market (libraries are collateral damage). Just because publishers say (in fine print only) that you have not bought the item, you’ve only licensed it doesn’t make that so. They tried to do that with physical books too and that failed.
It is the validity of these “contracts” that will sort out whether a person who clicks on a “Buy” button (not a “Lease” button) actually owns that digital object. If they do own it, then they should be able to transfer that ownership to another person. The possibility fact that they may have retained a copy will have to be dealt with using the same mechanisms that obtained in the print era when one could photocopy a book or read it aloud and record that reading or memorize it and recite it publicly, etc.
The rights of honest consumers should not be abrogated simply because of the ease with which dishonest individuals can break the law. We should never throw the baby out with the bathwater.

#3 Comment By Mima Pumpkin On February 20, 2013 @ 5:34 am

The thing is… almost every time you ‘give’ someone a computer file, you’re actually giving a copy of it. Meaning, you’re not extracting something out of your computer and transfering it, you’re just copying it and each has an ‘original’. That’s one of the major issues of selling used e-books. You can keep it forever and sell as many copies as you’d like. That would definitely be very harmful to publishing companies and authors. You can’t really compare physical books with digital media-they’re completely different in the way they work, so should they also be different in the way they’re handled legally.

#4 Comment By Frank Lowney On February 20, 2013 @ 9:56 am

@Mima takes a difference in degree and tries to make it a difference in kind. You can retain a copy of a physical book just as you can retain a copy of a digital book. The latter is easier than the former but this is only a difference of degree. There is no substantive difference where a person has lawfully obtained a copy of something, that is, they **own** it. Indeed, one can even own a license or an option to buy or any number of things that are not tangible in a physical way. If you own it, you should be able to transfer that ownership to another person, organization (e.g. library) or whatever. Whether an eBook seller can modify that fact via contracts that consumers really haven’t knowingly agreed to remains to be seen.
The Amazon patent appears to be based on the acceptability of the “delete and forward” concept of first sale as applied to digital objects. When and if they implement this, they will certainly be sued for copyright infringement. Their defense will apparently be, “No we are not infringing because no copy was retained or could have been retained.” If they can establish that this assertion as true, then they will be home free.

#5 Comment By Marilynn Byerly On February 20, 2013 @ 11:07 am

Frank, as an author, I own the copyright of my novels. I license the content via a contract with my publisher who licenses the content via contract to distributors like Amazon Kindle and Nook. How, then, can the person who “buys” that book now own the copyright so they can resell it, loan it, or put it online for anyone who wants to download it?

The “buy” button is Amazon and other distributors’ choice, not the author’s or the publisher’s, so why punish us for how the distributor sets up their site? The license is clearly printed on most ebooks or not so clearly placed somewhere on the distributor’s site. Again, those aren’t the publisher or author’s choice in the matter.

Those who think readers should have all the rights and the author none either haven’t thought it through to a possible conclusion like I have in my two articles on used ebooks, or they aren’t really readers. Real readers WANT books to published so they can have new things to read.

#6 Comment By Frank Lowney On February 20, 2013 @ 12:17 pm

@Marilynn, we are not talking about eBook purchasers owning a copyright (a government granted, time-limited and exclusive right to make copies of an original work). We are talking only about eBook purchasers owning a copy of an eBook and thereby having the right to transfer the ownership of that copy to someone else.
In addition to being easily copied, digital objects are more easily destroyed. This leads to the legitimacy of making backup copies. We also make copies whenever we open an eBook. The code is copied to the memory space allocated to an eReader. So, there are lots of legitimate exceptions to the idea that the buyer cannot make copies. To infringe the copyright, one must make a copy, transfer ownership AND, most importantly, retain a copy. Without meeting all three conditions with respect to the same digital object, there is no infringement. We shall see whether Amazon, ReDigi and others can navigate this path.
The preemptive punishment of readers based on the precognition that they will infringe copyrights is reminiscent of Phillip K. Dick’s “The Minority Report” (1956) and certainly subject to all of the contradictions described therein. We are on a very slippery slope.

#7 Comment By Marilynn Byerly On February 20, 2013 @ 12:23 pm

Frank, copyright ownership means that only I or my contract partners can say what can and can’t be done with a digital book, and that is included in the license information. If you “buy” an ebook, that doesn’t mean that you can abrogate those terms simply because you have a copy.

To resell an ebook after you “buy” it, is not only against the terms of license for almost all ebooks, it is also against US copyright law. That is infringement.

#8 Comment By willem On February 20, 2013 @ 5:36 pm

Rather obvious that a lot of people want to keep all the advantages of the physical environment (such as first-sale considerations), while also gaining the advantages that comes with didital. We have had these arguments before, see [7]

That some pretty stringent DRM would be needed to make the commercial reselling of ebooks even remotely possible is also clear, though in my experience many opponenents of DRM seem oblivious to this.

#9 Comment By willem On February 20, 2013 @ 5:38 pm

That should be digital of course, no idea what ‘gaining the advantages that comes with didital’ could be!

#10 Comment By Rob Preece On February 20, 2013 @ 5:54 pm

Seems to me that things have prices. There are books you can buy that come with the right to resell them (you see these all the time on scam sites… at least you do if you’re in the eBook business). When I sell a paperback, I recognize that it might be resold and price that paperback to reflect this fact. When I sell an eBook, I know it won’t be re-sold (at least not legally) and so price it more affordably. However, whether it’s a paper book or an eBook, the words “buy” and “own” need to be understood carefully. Just because you buy a paper book doesn’t mean you own it. If you owned it, you could copy it for all your friends. But you don’t own it, you own the paper… and because the paper comes with print attached, you own the right to resell that paper… without the need to erase the ink first. Similarly, if you buy a painting, you don’t own the right to reproduce it… that remains with the author. In many countries, you don’t even own the right to destroy it… your ownership rights are limited by the rights of others (in this case the painter). So, eBooks and paper books both have limited rights. If you want to argue that these rights should be identical, fine. But don’t try to make this something between “owning” and “renting.” In every case, you don’t own the book, you just own certain rights.

#11 Comment By Rohan On March 5, 2013 @ 10:17 am

There is a good list of books on Politics & Geopolitics on this Amazon page. The link is [8]
[9]

#12 Comment By ashious ex machina On March 16, 2013 @ 12:56 pm

If you are that hard-up for cash that you need to resell your e-books, maybe you should just sell your e-reader instead? I will bet they don’t want to sell the “used” e-books for dimes on the original dollar like they do for used paper books.


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URL to article: http://www.teleread.com/ebooks/the-used-e-books-controversy/

URLs in this post:

[1] Image: http://www.teleread.com/?attachment_id=79278

[2] e-books and the first sale doctrine: http://mbyerly.blogspot.com/2009/04/first-sale-doctrine-and-ebooks.html

[3] Owners’ Rights Initiative: http://ownersrightsinitiative.org/

[4] Image: http://www.teleread.com/?attachment_id=79286

[5] The right to resell: A ticking time bomb over digital goods: http://paidcontent.org/2012/12/15/the-right-to-resell-a-ticking-time-bomb-over-digital-goods/

[6] Adventures in Writing: http://mbyerly.blogspot.com/

[7] : http://www.teleread.com/copy-right/would-used-e-books-work-redux/

[8] : http://www.scribd.com/VijBooksIndia

[9] : http://goo.gl/KeZcs

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