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You Don’t Own It?

by Paul Rapp on November 1, 2012 · 3 comments

Several years ago, when the whole e-book thing was just starting, there was a bunch of controversy over what exactly you got when you bought an e-book. In one of those turns of events that is so ironic it takes your breath away, Amazon, upon learning that its license to publish George Orwell’s 1984 was fraudulent, made all of the e-book copies it had sold magically disappear from its customers’ Kindles. The outcry was so intense that Amazon’s Jeff Bezos apologized and said it would never happen again.

Well, it happened again. Last week, a Norwegian Kindle user found her Kindle locked, wiping out her entire e-book library. When she asked Amazon why, she got vague assertions that she’d violated Amazon’s terms of service.

As things sit today, while you think you are buying an e-book for $10, the seller thinks its licensing you an e-book for $10. And if you, in the opinion of the seller, misuse the license, adios biblioteque! The sellers, like Amazon, are maybe being a little nicer about it after the 1984 debacle, but that’s still how they view things.

What the e-book sellers are trying to avoid is something in copyright law called the “first sale doctrine,” which says once you buy a copy of something, you can do pretty much anything you want with it, except make more copies (that right stays with the copyright owner). In the physical world, it’s obvious—you buy a book or a CD or a print, and you can keep it; you can eat it, burn it, give it to a friend, sell it on eBay, etc. In the digital world, the e-book sellers are all kinds of worried that people will go nuts and make copies of their e-books for all their friends, post the book online, and generally do all of the stuff people do these days with music. So they’ve created this fiction about licenses, and rigged the e-book files and e-book readers with little “phone home” capabilities that can erase your library should you dare to misbehave.

This issue is getting especially dicey with libraries that want to do what libraries should do with e-books: Lend them out. Publishers, who have always hated libraries, have no idea what to do. Remember, e-books are tethered, so a library can’t just go online and buy an e-book, because it can only be read on one device, or one owner’s devices. So publishers need to provide libraries e-books with looser controls, that can be moved across platforms, and shared with the public. Several publishers have simply refused to allow this and have kept their e-books off of the library’s digital shelves. Several provide e-books capable of being lent out, but gouge the libraries as much as 300 percent of their normal retail prices. One publisher doesn’t allow its e-books to work on certain devices it doesn’t like, and another electronically limits its library e-books to 26 loans.

What a stupid mess. So it was shocking last week when a Random House executive announced, in an interview, that when a library bought a Random House e-book, it owned the book. It was not a license. After this stunning comment bombed around the web for a couple of days, a different Random House executive dialed it back, saying that libraries “owned” their e-books inasmuch as the libraries could move the e-books across several preapproved platforms. Meaning that libraries don’t own e-books, they own licenses for e-books. Inasmuch my ass.

The first-sale doctrine came up this week in an argument at the Supreme Court. It’s always exciting when the high court takes a copyright case, because it rarely does. It’s also frightening, because it rarely gets it right. This time, the case is about a kid who bought textbooks overseas and was selling them in the United States via eBay. Scholastic publishers apparently assign wildly varying prices to textbooks in different countries. Why? Who knows?! But I suspect it has something to do with the fact that scholastic publishers are inherently evil. In any event, the U.S. publisher of the titles sued the kid. The case comes down to whether copyrighted material bought in another country is subject to the first-sale doctrine here in the States. The publishers say no, which is of course insane. You buy something (almost anything) in a foreign country and you can’t sell it here? Really?


Paul Rapp is an area IP lawyer who is on his third day of back-up power, which was fun the first day, annoying the second day, and a real goddamn drag today.