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.

Comments

I got a better lawyer

[gnutoo]

I think I'll stick with Lessig's opinions and the surprisingly readable US Constitution.

How to sell your copy of Hary Potter only touches on the madness of paper based copyright applied to digital files. If these books are no longer mine, they are no longer the library's either. Do we really want a future where anyone and everyone can be cut off of knowledge at the flip of a switch? Where "owners" must be trusted with the raw material of history? No.

The answer to all this is very simple. The lower cost of publishing should bring lower protections and fewer created rights because fewer incentives are required. Advertising costs have not declined, so it is easier to recoup publishing investments now than ever. Worse for high cost, established publishers technology makes old laws contradictory and insane. Publishers want to make "unwet water" and outlaw the normal stuff by dominating the channels of distribution - the no real library future. We should allow people to make exact copies of almost all works and distribute them freely. It's really that easy and companies that can't live with that kind of freedom should look for a new line of honest work.

Re:I got a better lawyer

[shmlco]

"Then we need to create a segregated community: their content and Our content."

Cool. I eagerly wait your next book.

You know, the one you're going to spend the next year writing, and that you're going to donate to the world, free of charge?

Odd, isn't it, that it's easy to advocate that eveyone else give away their work for free?

Re:I got a better lawyer

[Metasquares]

I don't know about entertainment authors, but many scientific writers already do this. Certainly we give our publications away freely, if not our books, and most of us are perfectly OK with that. (The publishers tend to lock the works up for profit which we don't receive any of, which isn't OK, but that's a whole different issue).

Give your works away for free if you want the greatest exposure to your ideas. Sell them if you want to monetize them. But at least have the decency to allow fair use.

Re:I got a better lawyer

[Oligonicella]

"I think I'll stick with Lessig's opinions and the surprisingly readable US Constitution."

The surprisingly readable clause:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

"The lower cost of publishing should bring lower protections and fewer created rights because fewer incentives are required."
"We should allow people to make exact copies of almost all works and distribute them freely."

It doesn't at all sound like the copyright clause of the Constitution. You might reread that clause and notice the word exclusive.

Re:I got a better lawyer^Widea

[tomhudson]

Embed advertising in ebooks, the same as in magazines and newspapers, and give the ebooks away.

Advantages

1. "Content is king" - it'll be seen
2. Targeted market
3. Reflects the lower cost of production/distribution
4. Easier to disintermediate - greater portion of the revenue ends up in the authors' pocket/purse/wallet/bank account

Caveat Emptor

[justsomecomputerguy]

It bears repeating: The RIAA, The MPAA and all the other sue-the-customer organizations really really do want to make so that eventually you the consumer have NO RIGHTS, zip, zero, nadda to own anything.

Making everyone pay a fee each and every time they want to listen to or read or view something is their eventual goal.

You will own NOTHING.

You will have NO RIGHTS to view ANYTHING unless you pay their fees.

That IS the eventual goal.

Figure out how to tell this to non-librarians, non-techies

Re:Caveat Emptor

[The End Of Days]

What I find most interesting about the argument over copyright is how it boils down to two groups justifying why their greed is more meaningful and important.

Fine idea.

[gnutoo]

That sounds like a great way to do things and I'm sure there are many, many others.

What I'm interested in is preserving our rights. Publishers can think of ways to make money without robbing us of the ability to help our neighbor and without assuming draconian control of information. For them to violate our rights, we must agree to be threatened and prosecuted for doing things that are not crimes. It is better to keep them from making laws that threaten us than it is to try to do their job for them.

Publishers already know how things will work in a free society. They are not stupid and this is why they fight so hard. They understand that the broadcast era is over and with it their ability to control opinion and profit from every aspect of popular culture. There will be profits but they will be distributed and much closer to the artist than they are now. The big record companies, movie companies and paper publishers are out of luck and the damage done to public institutions will follow. With freedom comes truth and from truth we can expect justice. Without freedom, expect great injustice.

Re:Fine idea.

[shmlco]

It's all very well to speak of "publishers" in a derogatory sense, but totally ignore the fact that we're also talking about "authors". You know, the people who spend a year or so up front WRITING those books.

What I'm interested in is preserving EVERYONE'S rights.

Re:Fine idea.

[peterarm]

I call bullshit: I have self-published a PDF-only book on Lulu, and I made $16 per copy. This book is currently for sale with a real publisher, and I would miss the PDF royalties *very* much if they evaporated. (My book is copied on BitTorrent, and there's nothing I can do about it.)

Authors are real people with families and mortgages; this isn't just some juvenile "you vs. the **AA" thing -- that may be true to a degree for records or movies where the **AA is evil, but it's not true for books. Many publishers are decent individuals, and authors aren't exactly millionaires...

Re:Fine idea.

[The Spoonman]

And they have no authority to determine how I execute mine. I want my books in a digital format so I can read them on my laptop, my PDA, my computer at work, my e-book reader...whatever. If you want to reduce my rights just to read your book, well, sorry I ain't going to buy it and you lose a sale. Only a fool would continue to release their art using "the old ways". I've purchased quite a bit of music and literature that I started out by downloading copies the author published for free on their site. I've then either donated or purchased a print copy, if it was good. If it wasn't, I didn't waste my money. These authors typically sell more copies of their books than those who go through traditional channels, indicating the marketplace is heading in that direction. It's the marketplace that decides how products are sold, not the content producers. We just want to pay them to share in their ideas, why is that a bad thing? Yes, some people are going to take advantage of the situation and never pay for everything. Boo-hooo. When I was a waiter I learned early: some people are never going to tip, but at the end of the night, my average per table was what was most important. With a little bit of work, you can download pretty much any book on the market today, yet books are still being sold everyday. Wonder why that is?

Re:Fine idea.

[Joe Tie.]

I'd say the customer is the one who gets to say how the transaction goes, or rather if it does. And if I can't read the ebook, I'm not going to buy it.

Re:Fine idea.

[Anonymous Coward]

Sorry, but you're completely wrong.

First of all, the only reason there is a market for the author to distribute his works is because of the artificial construct we have created in copyright. Without copyright, an author has basically two choices: sell it once or hide it. With copyright the author has two different choices: sell it lots of times according to the collective rules of society or hide it. That's basically it. Anything else (e.g. giving it away) is just a variation of those two choices.

Second, while the author is completely free within this system to do whatever the hell he or she wants, the reality is that if what he or she wants is to make money, then the market, not the artist, ultimately decides how the work is to be distributed. The only reason the market is not having its say right now is due to oligarchies such as the RIAA or because the market is relatively new (i.e. the ebooks market).

That desire is only driven by the cheapness of not wanting to pay for something you desire.

Your ad hominem argument is driven by your inability to think about and discuss the issue rationally.

Re:Fine idea.

[Mr2001]

I would miss the PDF royalties *very* much if they evaporated [...] Authors are real people with families and mortgages The folks who made a living selling buggy whips were real people too, with their own families and mortgages to worry about. Some of them, the ones who wouldn't or couldn't adapt to a changing world, lost their ability to provide for their families.

That's sad.

But you know what? Our society is better off now, because we were willing to bite the bullet and tell those people, "You're going to have to find another way to earn a living." If we had used the force of law to protect their incomes, those few people would've been better off -- at everyone else's expense.

We're in the same situation now. Some people won't or can't adapt to a world where they can't make a living selling copies of information: a world where their talent as artists and authors is still valuable, but only when it's applied directly, not indirectly via copyright.

Some of those people will be left behind, and that'll be sad too, but it's necessary. And just like the era of the automobile brought in a whole new set of jobs to replace the ones that were lost, so will this era.

Re:Fine idea.

[wall0159]

Yeah. Unfortunately, most people base their actions on selfishness, and try to justify them later by moralising...

While it makes sense to revise some of the ideas of copyright for internet distribution - I don't think it makes sense to advocate the wholesale destruction of 'Intellectual property' as a concept. I don't believe that cheapskates and freeloaders should define public policy.

While I have shared original music on Jamendo (for example), I also know that my day-job is dependent on the fact that I am creating value for my company by creating new ideas and writing software. These are not tangible, and in the absence of IP protection would be nearly valueless (in a monetary sense, to the company - I realise they would likely have some value to society as a whole. But then, isn't that the point of copyright - to reward those that contribute to society, and hence hopefully encourage more to contribute. If there were no IP laws, my company would likely not exist)

Re:Fine idea.

[toriver]

The point is that the anti-consumer industries - that is, the industries trying to restrict more and more what someone who bought their products can do with them - forget that copyright is a government-granted monopoly and not a "natural right". Copyright stems from back in the day when "work" was stuff like smithing and tilling fields. Sitting around on your ass writing books or painting did not put food or tools into the community. But the lawmakers saw that cultural products had intrinsic value, and thus created an incentive for creators to make a living from their art but also ensured that those works would eventually enter the public domain and become part of the shared culture.

Then we got the industry (where "art" is replaced by "product") and the lobbyists (who fight to keep works out of the public domain) and now "the artists" have been superseded by organizations that cry their crocodile tears over the plight of the artist, while in reality representing soulless commercial entities who provide crappy contracts unless you are very smart or very famous and can dictate your own terms.

You are right that we "do not get to determine how someone else distributes their work" - but Congress (in the case of USA) does.

Re:Fine idea.

[cpt kangarooski]

Yeah. Unfortunately, most people base their actions on selfishness, and try to justify them later by moralising...

While it makes sense to revise some of the ideas of copyright for internet distribution - I don't think it makes sense to advocate the wholesale destruction of 'Intellectual property' as a concept. I don't believe that cheapskates and freeloaders should define public policy. ... But then, isn't that the point of copyright - to reward those that contribute to society, and hence hopefully encourage more to contribute.

Sadly, you sound selfish to me. But don't get me wrong; that's perfectly fine.

Copyright is based on selfishness. The public is greedy; it doesn't care about authors for their own sake, it only cares about having more works created and published, and having those works for free, sans any kind of restriction or protection, so that it can do what it pleases with them. Copyright is simply a policy to try to satisfy that greed, by stimulating creation and publication, with as few restrictions as possible, for as little time as possible. If the benefit to the public of the stimulus is outweighed by the harm to the public of the restriction, it isn't in the public interest.

There's no intent to reward authors at all. The idea is to exploit their selfishness so that they'll do things -- create and publish works -- that are in the public interest. Copyright is no reward; it's a bribe. And it's not meant to be a generous bribe. If an author would create and publish a work in exchange for a 5 year copyright, it would be idiotic to offer him a 6 year copyright; it'd be idiotic, even if the author would prefer it.

So basically, we have a system that is geared around public selfishness, but with a recognition of the fact that immediate gratification might be quite weak, and that a delay can produce vastly greater results (like allowing cattle to mature, be milked, reproduce, and then be eaten, instead of having lots of veal but causing cows to go extinct). It functions by exploiting the selfishness of authors, who in some cases will not create and publish works without a bribe. (Those that would create and publish anyway don't deserve to be bribed, obviously)

Selfishness is the very heart of copyright. It's a system that works best -- for the public, I don't care about authors -- when cheapskates and freeloaders administrate it, since we want to maximize the net public benefit. Generosity would interfere with that.

Your position is understandable as an author; you are selfish, and want to increase what you get, regardless of the effect on the public. You wouldn't respond to copyrights at all if you weren't, so no one is upset with you. It's just important that we ignore you for the most part, and only give you the bare minimum that it will take in order to get you creating.

Re:Fine idea.

[cpt kangarooski]

Why should I spend months or years researching and writing a book, if there's absolutely nothing to stop people from freely distributing it once its out there? Sure, some people are still going to writem but it'll be fewer, and I fail to see how our culture would benefit from that.

The public benefits from having more works created and published. The public _also_ benefits from being unrestricted with regard to works, so that they can be republished for minimal cost (rather than the monopoly prices charged by copyright holders), altered, etc. In an ideal world, we'd have both.

This isn't an ideal world, though, so we wind up trading a bit of the latter kind of benefit in order to get a more than proportionately larger increase in the latter. The idea is to get as close to that ideal as possible, so we look to maximize the public benefit: terms that are just barely long enough to encourage creation and publication, but by all means so short that they don't interfere much with the public.

completely taking away any creator's rights is not the answer, either

It can be. Copyright is artificial, and a lack of it is the natural state of things. It's our baseline for judging how good a copyright system is: does it produce a greater public benefit (more works created and published and unrestricted) than having no copyright at all? I think that some form of copyright (much less than we have now) would produce a greater benefit, but it's certainly possible that none would. So abolishment always has to remain on the table as a possible option.

Re:Fine idea.

[Mr2001]

What exactly are you saying? That *writers* need to find another way to earn a living? Yes, exactly.

The analogy isn't between buggy whips and writing, it's between buggy whips and selling copies. Fewer people want to pay for copies in a world where they can make their own copies for free, just like fewer people want to pay for buggy whips in a world where they can get around without a horse and buggy.

Writers, musicians, and everyone else who makes a living by selling copies needs to wrap their head around that. Their talent -- the act of coming up with a story and putting it into words -- is still valuable, and if they charge directly for using it, they can keep making money, because people will always want to read new stories.

The idea that a writer's job is to sell books is a relic of a time when copying books was difficult and copyright was easy to enforce. Now, copying is trivial and copyright is virtually unenforceable. That doesn't mean writing won't be viable anymore, only that selling books won't be a viable way to make money as a writer.

Re:The Madness Continues

[Microlith]

I don't pay taxes on my Playstation 2, or on my couch.

Do you want to try and estimate what the value, and tax, associated with any given open source project is? Who would pay it?

Do you want Microsoft to be able to forcibly buy out the Linux kernel? How about the Apache Project?

Fixed ideas.

[Anonymous Coward]

"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."

The price of quick convienence is issues like this arise. This is why the part in copyright law about being in a "fixed medium" should have been the norm. Buy your digital books fixed onto a memory chip. Loaning, selling, etc would have been the same as a physical book. The only difference is that your reader allows only limited copies (like a library would) and not retain any backups (like a dead tree book).

---
Heh! My captcha is "deterred".

Re:This is 100% consistent with current copyright

[icegreentea]

Wouldn't that run into some problems with reproduction? This is why photocopying and book and then selling the photocopy isn't allowed, or why the DVDs on sale in Chinatown for 3 bucks are illegal.

Re:I got a better lawyer^Widea

[Fael]

What a stup

(PLEASE WAIT FOR AD TO LOAD ...)
(ENLARGE YOUR PEN1S NOW ASK ME HOW)

endously great idea.

Truth in advertising

[LihTox]

What lets companies get away with this is that consumers don't know about it, and stores toss around words like "buy" and "sell" when the more appropriate term might be "(indefinite) lease". Let's pass a law forbidding e-book sellers from saying in their advertising "Buy this e-book!" or "We have e-books for sale!"; if they are forced to say "Buy a license for this e-book!" or "Lease this e-book!" and consumers will get the idea that something is up, and become informed.

Ditto for DVDs, music, software, or anything else where the manufacturer claims to be selling licenses.

Mod Parent Up and REJECT BOOK ADVERTIZING!!!

[RobBebop]

Actually, don't mod parent up because he was an Anonymous Coward, but as an aspiring author I would say that anybody seeking to use their writing to shill for advertisers does not deserve to be read.

I am in support of the business model where readers can experience an author's work from a free digital download... and then vote with their pocketbook by making a "donation" if they think what they "experienced" was worth it.

That is --- "read now, pay later". I think the days of "pay now, read later" are numbered.

Then again, I am continually refining my manuscript so that it will be readable for a mass audience. As is, the compliments I get are that the "story" is awesome but the actually story-telling is lacking (which I am, of course, working on).

Re:Mod Parent Up and REJECT BOOK ADVERTIZING!!!

[Original Replica]

What is so bad about having legislators or judges in the government who are sponsored by so-and-so?

If I have a book that I find to be offensive or a failure, I can burn it. Extend that to legislators and judges and I would have no problem with them being publicly sponsored by so-and-so.

Re:I got a better lawyer^Widea

[WNight]

You've got the right to hit mute, even if ads are how the publishers make their money in the long run.

Turn it back on and clear the block list. Then block only annoying ads.

They'll be able to see viewing statistics for the ads and they should realize that some users are blocking some of the ads. Blocking the real garbage keeps from rewarding the jerks, and gives the people who play nice a better chance. If they investigate they might find that giant pulsing banners aren't popular...