Dutch court: selling e-books second hand is legal

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by bartkappenburg • 12 years ago

103 51 12 years ago

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skywhopper2• 12 years ago

This is encouraging news. A huge blow to fair use and access to media is being struck as we move to electronic formats for music, movies, and books. Libraries, rental services, used bookstores, and more depend on this concept to allow greater and fairer access to media. How we transition this concept into the world of digital media will greatly effect the extent to which we can fulfill the promise of computers and the Internet to make life better.

The First Sale Doctrine may be difficult to apply in a world of digital media, but it is not more difficult to apply than Copyright itself. Establishing a legal right to resell digital goods is a necessary counterbalance to the evergrowing power of Copyright owners over how we use our computers.

otoburb• 12 years ago

Would artificial scarcity via fingerprinting (e.g. a unique hash to establish authenticity of ownership) per electronic copy help or hinder digital good resales?

I would support a token/watermark that proves authenticity of ownership, but can see where other more militant may say that this feels like a form of DRM (albeit without actual encryption or restrictions beyond the inclusion of the nonce to generate a unique signature).

In practice and within today's environment the idea of fingerprinting would be silly because it would be relatively easy to produce an unmarked copy, as is already the case with DRM protected .MOBI or .EPUB formats anyway.

wmf• 12 years ago

Unless the fingerprint could be updated upon resale (how?) it wouldn't prove much. Fingerprinting also doesn't seem to deter reselling multiple copies unless all the buyers cooperate.

ThomPete2• 12 years ago

Cryptoprotocol could allow for this.

izzydata• 12 years ago

I don't disagree, but it seems weird to treat physical media and digital media of a similar type exactly the same when they are simply aren't the same. The truth is you can make infinite copies of an e-book.

infinite8s• 12 years ago

You can also make near 0-cost copies of physical books. Only thing stopping you is copyright law.

laumars• 12 years ago

You can make infinite copies of a physical book. It just costs more to do so - both in terms of currency and time to copy. But that's where copyright law steps in. You can sell your copy, but you cannot duplicate the content (bar some caveats).

tomphoolery• 12 years ago

"Why the fuck do you get to resell something that I made? It's mine, I should get the money for it. Why do you get the money for it? Fuck you, I want my money!" is pretty much how I feel when I hear about people re-selling digital goods. It doesn't make any sense to me. Please explain how the original content creator profits off of this, if he/she doesn't then I believe this ruling is not only immoral, it's also completely stupid.

teddyh3• 12 years ago

If you could clarify why your argument applies to digital media but not physical media, it would help.

Or, alternately, do you believe that resale of a thing you made should benefit only you? Is that in perpetuity, or how long should this last?

nospecinterests• 12 years ago

Really? What type of terms would you need/agree to to allow for the resale of a digital or physical item? If you want more than the original sale price of the item then you are charging way too little for the original sale.

Turing_Machine• 12 years ago

People are more willing to spend money on something that they know they can resell, which is an indirect benefit to the original seller.

It works that way with cars, houses, and even physical books.

Do you think a ban on selling used cars would result in more new cars being sold? I don't. For one, not everybody can afford a new car. For another, people generally use the money (or trade-in value) they get from the old car to buy a new one.

Why should digital goods be any different?

hahainternet• 12 years ago

Why the fuck do you get to resell something that I made? It's mine, I should get the money for it

Because I paid you for it. I bought it off you, just the same as if someone later re-sells a desk I made for them I can't demand further payment.

AimHere• 12 years ago

Your argument could apply to a book too; why should an author NOT be able to veto whenever a copy of his work changes hands, or gets lent to a library or ends up in a second-hand bookshop?

But the law of copyright is clear when it comes to physical goods. The consumer has rights too, and one of those rights is to treat physical copies of copyrighted works the same way as normal everyday physical items. It's one of the limitations that society has seen fit to impose on the rights of copyright holders; in exchange for their monopoly on the right to make copies of their works, the customers get the right to borrow, lend, resell or otherwise alienate themselves of the product. You'll find the doctrine called 'exhaustion of rights' or 'first sale', and in US Law, it's to be found in 17 USC 109.

What's happening here is that with the internet switched on and the mass trade in digital goods, the copyright holders have been spending years making the analogies with physical goods that require capital and cost money to reproduce ('You wouldn't download a car') and now the physical items analogy is being applied to the rights that everyone else has too.

Joeri• 12 years ago

Not quite what the article says. The judge has punted the question to the EU level, and denied granting an injunction prohibiting the resale. It's still perfectly possible that the court will rule the site in question is not operating legally.

bartkappenburg• 12 years ago

Maybe I should have said "for now"

seanflyon5• 12 years ago

Even that is misleading in my opinion because the court did not say that reselling e-books is legal for now. The court declined to grant an injunction.

SEMW• 12 years ago

True, but there's a good reason to think the CJEU will give the right answer: Oracle v Usedsoft[1] was only a couple of years ago, which upheld that first sale doctrine for software (i.e. that even a supposedly non-transferable software licence still counted as a sale for the purposes of that doctrine).

I think that ruling was under the software directive rather than the IS directive, but the logic seems like it'd apply just as well to ebooks (and I doubt the two directives differ much on first sale, though I haven't checked), so I'd be surprised if we don't get a similar result here. IANAL, though.

[1] http://curia.europa.eu/juris/document/document.jsf?docid=124... , summary at http://www.linklaters.com/Publications/Publication1403Newsle... , HN discussion at https://news.ycombinator.com/item?id=4193413

grabeh• 12 years ago

IS directive specifically references tangible goods as opposed to the Software directive which makes no distinction. At least in this respect it looks like first sale may be limited to software for the time being at least on the basis of post-Usedsoft case law, but we shall see!

http://www.osborneclarke.com/connected-insights/publications...

rasz_pl• 12 years ago

Sadly german courts have already ruled Steam games cant be resold, because although they are software, they also contain artwork, and this somehow makes them like movies or something

http://www.rockpapershotgun.com/2014/02/10/german-court-rule...

zorbo• 12 years ago

Meanwhile we're stuck with price-fixing on books (by law) in the Netherlands which, IMHO, is a much much larger problem than the legality of reselling of e-books. And although that law doesn't apply to e-books, retailers so far haven't deviated from that norm, probably because it let's them line their pockets too. For any other industry such price-fixing would be considered illegal, but for some reason the publishing and media industries have been exempt.

jiggy2011• 12 years ago

The article seems to be down for me. But I'm curious if there would be any mechanism in place to limit used sales in any way since electronic copies do not suffer from the same problems of wear and tear etc that a physical book would.

If I can buy a used copy of a digital book cheaper then there is really no reason ever to buy a new copy.

Hell , if the market is convenient and has enough liquidity then what's to stop me from buying a book, reading a chapter and then selling it and buying the same book back again at a reduced price when I want to read the second chapter?

I could see this might cause the price for ebooks to crash towards 0 unless there is something in place to rate limit purchases/sales.

bellerocky2• 12 years ago

Steam lets you trade and sell digital goods that you bought from steam. For reselling of digital goods I think you either need a centralized system that that is the trusted arbitrator of who owns what and is involved in all transactions your use a distributed system like bitcoin where a p2p network creates a consensus on who owns what.

So I think this can be done. You can't stop the seller from continuing to consume the content after they sell it, but at least they wont be able to sell it again. Nice clients might make it so that you have to prove that you own something through the system, without even needing DRM, but of course this is mostly an honor system.

tokenizerrr• 12 years ago

Steam lets you trade and sell digital goods that you bought from steam

Do they? Only if you haven't claimed the game, I believe. You cannot sell (or trade) games that you have in your library.

Natsu2• 12 years ago

Yes, there are significant restrictions and you can't take a game out of your library and gift it, for example. I believe there may be other restrictions on, for example, having people trade when one person is in a low price region and gifting to someone higher, but I'm not very familiar with the details.

bellerocky2• 12 years ago

You can trade Team Fortress 2 items.

seanflyon5• 12 years ago

I am going to submit a minority opinion here and say that I think publishers should be allowed to sell you a non-transferable license to access a e-book. If Disneyland wants to sell you a non-transferable season pass, I see nothing wrong with that. I'm not proposing that we take away your right to resell, I'm arguing that we allow you to buy something less valuable. A non-transferable license is worth less than a transferable license, and if it does not cost less you should not but it, but that is a pricing issue.

r00fus2• 12 years ago

As long as they are forced to sell you a transferrable version, I'd say that's ok.

The danger is the case when only non-transferrable licenses exist for all media due to industry collusion.

seanflyon5• 12 years ago

Forcing them to sell you a transferable version seems reasonable, but I still disagree. First, forcing them to sell you something is meaningless unless you force them to sell it to you at a reasonable price, so you plan requires price fixing. Second, collusion is already illegal. Finally, I don't see the danger. This is already quickly becoming the case for video games and has been great for the industry, both developer and consumer.

acd• 12 years ago

I pay tax on hard disks to be able to private copy music and videos yet they are protected by DRM so its not possible to copy music to your friends, this should also be challenged. Either there are DRM and no copy tax or there are no DRM and you are allowed to copy. Same goes for HDMI.

ThomPete2• 12 years ago

This is where a crypto-protocol could come in use. Basically allowing people to buy books and resell with guarantee it's the original. This might even allow the books to be sold more expensive.

Dutch court: selling e-books second hand is legal

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