Thanks to reader and contributer Ari Schwartz for suggesting this topic.
We have already discussed how eBooks will hasten the end of what we called long-form reading, i.e. book reading, by the majority. We have speculated that eBooks will lead to a vast reduction in traditional publishing, mainly because with eBooks there are no used books to sell, which excludes a major pathway by which readers discover new authors.
And it now appears that, if a certain court ruling holds, eBook publishers will be able to legally forbid the reselling of eBooks. Thus, if you buy a Kindle or iPad from another citizen upon which are titles not in the public domain, the publishers of those titles will soon have the right to erase those titles from the device. If the owner of the device or devices is a library, then if the library changes hands, its collection disappears.
Both The Consumerist and Wired are reporting a decision by the 9th U.S. Circuit Court of Appeal about the so-called first-sale doctrine as it applies to software, and possibly to any copyrighted works such as eBooks, and even printed books.
As l have long stressed, when you buy an eBook you are not buying a book, but purchasing a license to read certain materials at a company’s pleasure. Once this company ceases finding pleasure in your activity, the company can forbid you to continue reading the material. As has already happened when Amazon whacked copies of 1984 from some Kindles.
The 9th Circuit Court—which, in case you do not recall, is in San Francisco—issuedthis ruling. The case originated when Timothy Vernor decided to sell copies of AutoCad, which he owned, on eBay. AutoDesk complained, and eBay complied with AutoDesk’s request to remove the sale. eBay went further and removed Vernor’s account. And then came the lawsuits. A lower court initially agreed with Vernor’s argument that since he owned the copies, he was free to sell, much the same way that somebody is free to sell a book.
The 9th Circuit Court, on hearing the pleas of AutoDesk, do-no-harm-Google (the same company which began scanning publishers’ books without first securing publishers’ permission), and according to Wired, “Adobe, McAfee, Oracle and dozens of others” agreed that reselling software was a no-no. Think of the lost revenue! The court quoted from the AutoDesk license:
YOU MAY NOT: (1) modify, translate, reverse-engineer, decompile, or disassemble the Software. . . (3) remove any proprietary notices, labels, or marks from the Software or Documentation; (4) use . . . the Software outside of the Western Hemisphere; [… And if the software is upgraded You] must destroy the software previously licensed to you, including any copies resident on your hard disk drive . . . within sixty (60) days of the purchase of the license to use the upgrade or update [wide ellipses in original].
This license is typical, extraordinarily restrictive, and long. It’s their own fault, but most people have no idea what they are agreeing to when they license software. Specifically, most purchasers are unaware that they are agreeing that the software is nontransferable.
Now, the first-sale doctrine is what allows owners of purchased copyrighted works (such as book owners) to resell those works if they wish. The key ruling of the court is that appeal to this doctrine is
unavailable to those who are only licensed to use their copies of copyrighted works [emphasis mine].
Thus, “Our conclusion that those who rightfully possess, but do not own, a copy of copyrighted software are not entitled to claim the [first-sale] defense is also supported by the legislative history.”
How about eBooks? Here is a portion of Amazon’s Kindle license:
Restrictions. Unless specifically indicated otherwise, you may not sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any rights to the Digital Content or any portion of it to any third party, and you may not remove any proprietary notices or labels on the Digital Content. In addition, you may not, and you will not encourage, assist or authorize any other person to, bypass, modify, defeat or circumvent security features that protect the Digital Content.
Incidentally, it goes on that the Kindle “will provide Amazon with data about your” Kindle, including notes, bookmarks, and so on. So if you’re underlying the juicy parts don’t expect privacy.
As the law now stands, you may not resell a “used” eBook. Absent paper copies, and with libraries the only other option to read a book (but only while sitting at their terminals), the only way readers can discover new authors is to buy works directly, incurring a cost many will find prohibitive. Thus, this latest ploy by publishers to increase income will backfire and lead to the exact opposite consequence.