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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.
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 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.
AntiFA: An abbreviation for Anti First Amendment.
Just thought this was an opportune time to reference The Right to Read