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E- BOOKS- “IT’S MY E-BOOK, AND I’LL SELL IF I WANT TO, RIGHT?”

New Post Goes Up Every Wednesday at 8:30 pm ET.

THE STORYTELLER, by Jodi Picoult, is #1 on the New York Times  Fiction Best Seller List of March 25, 2013.

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JANE BUYS A BOOK

Select the correct answer:

1. Jane lives in the U.S. She  buys a hard copy of the novel, The Storyteller, by Jodi Picoult from Amazon for $12.74. After she reads it may she sell it?

__Yes   __ No

2. Jane lives in the U.S. She buys an e-copy of the novel The Storyteller, by Jodi Picoult from Amazon for $12.74.  After she reads it may she sell it?

__Yes   __No

JUSTICE BREYER BUYS A BOOK

In the Supreme Court decision in the case of Kirtsaeng v. John Wiley & Sons, Inc., Justice Breyer wrote:

Thus, even though §106(3) forbids distribution of a copy of, say, the copyrighted novel Herzog without the copyright owner’s permission, §109(a) adds that, once a copy of Herzog has been lawfully sold (or its ownership otherwise lawfully transferred), the buyer of that copy and subse­quent owners are free to dispose of it as they wish. In copyright jargon, the “first sale” has “exhausted” the copyright owner’s §106(3) exclusive distribution right.

WHOSE COPYRIGHT IS IT ANYWAY?

Defined in simple words, the legal terms necessary to answer this question are:

  • Copyright – Protection from copies being made of something without the owner’s permission.
  • First Sale – The first time a transfer of ownership occurs.
  • Sale – Transfer of ownership of something from one to another.
  • License – A right to use something, but not own it.

A “ROSE IS A ROSE, IS A ROSE, IS A ROSE.”

The above words from Gertrude Stein are akin to Shakespeare’s Romeo and Juliet, “A rose by any other name, would smell as sweet.” Or, as the duck idiom puts it, “If it looks like a duck (book), walks like a duck ( book), and swims (reads) like a duck ( book), it’s a duck (book).”

Simply stated: “a book is a book, whether p (print) or e (electronic).” Further, if something is advertised for sale, and it is sold, it is a sale.

LAW AND LITERATURE

Both the p and e versions of The Storyteller are listed for sale on Amazon, and the price is the same, $12.74. However, according to the publisher, you don’t own an e -book, you just get a license, a right to use it, but not to sell it, because you don’t own it. “Hmmm…,”you may ask, “But, it’s advertised for sale, not for rent.” And, “If I had known that, I wouldn’t have bought it.” You then ask, “Isn’t there something unfair and deceptive about this.” And, “Isn’t there a law about this?” Actually, virtually every state, and the federal government, have consumer protection laws prohibiting unfair and deceptive business practices, including unfair and deceptive advertising. Check out this article from the  National Consumer Law Center (NCLC).

A NEW PATENT SO YOU CAN SELL SOMETHING THEY SAY YOU DON’T OWN

Recently, it was announced that Amazon, has received a patent for a resale marketplace for used e-books. As reported by Caitlin Dewey in the Washington Post on February 6, 2013, “Amazon patents resale marketplace for used e-books, songs and other digital goods…. Consumers may someday be able to buy and sell old e-books, apps and songs the same way campus bookstores sell used textbooks — at least if an Amazon patent ever comes to life,” (presumably, for a fee). The Amazon patent Abstract contains this curious provision, “When a digital object exceeds a threshold number of moves or downloads, the ability to move may be deemed impermissible and suspended or terminated.” But why, you ask, should you pay to sell something that Amazon insists you don’t own. Jane is now wondering if there is something wrong in OZ, because things continue to get curiouser and curiouser.

JANE IN EUROPE
The EU has decided a case against Oracle, Case C-128/11 UsedSoft v. Oracle, which says that a person in the EU has the right to sell their used software, because the software was originally first sold to them. An article post by Steven J. Vaughan-Nichols in ZDNet, July 5, 2012 titled, “Could Oracle ruling lead to used e-book, music
sales?” stated,

The Court of Justice of the European Union (CJEU), the EU’s
equivalent of the U.S. Supreme Court, has ruled against Oracle in a software
copyright case. Specifcally, the CJEU ruled that “Where the copyright holder makes
available to his customer a copy—tangible or intangible—and at the same time
concludes, in return [for] payment of a fee, a license 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.” In
short, you can and buy sell downloaded used software in the EU… and that suggests
that you might be able to resell used e-books, digital music, and video as well.

Vaughan-Nichols cites Benoît Keane, a solicitor in England and Wales and a specialist in EU law,  in an article post titled”European Court upholds sale of software products purchased online” states that “The rationale of this judgment could have major implications for other digitally available products, such as e-books and music, which are increasingly purchased through internet sites rather than in tangible formats.”

JANE IN COURT

Well not really Jane, but ReDigi a company located in the U.S. in Cambridge, MA, a reseller of digital music. In the case of Capitol Records, LLC v. ReDigi Inc., Judge Richard Sullivan of the U.S. District Court for the Southern District of New York, on February 12, 2013 refused to issue an injunction against ReDigi noting the the case raised interesting issues of copyright and the first sale doctrine. The case will have continue to be litigated. In the meantime, readers may be interested in this report on a Press Release  from ReDigi on the amazon patent.

FURTHER READING

Other sources on the issues of sale versus license, first sale doctrine, etc.

iTunes White Paper

First Sale Doctrine Upheld in Kirtsaeng Great Article Post by Nate Hoffelder and comments by “Void.”

– “First Sale Doctrine and Ebooks,” Adventures in Writing
(Claims first sale only applies to physical books.)

– “Amazon Kindle and Sony Reader Locked Up: Why Your Books Are No Longer
Yours,” Columbia Science and Technology Law Review

– “Licensing of a digital copy: does first sale doctrine kick in,” The IPKat

– “Used Ebooks, the Ridiculous Idea that Could Also Destroy the Publishing Industry,” Motherboard

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