TOC: You Bought it, But Do You Own It – Bill Rosenblatt

Amazon’s patent on digital resale was filed in 2009.

Publishers would not be allowed to forbid or restrict libraries to lend eBooks freely. Copies would last forever and there would be no more confusion or complexity. Currently the big six publishers all have different library rules. Every publisher would have to use the Random House model of license, but unlike RH the libraries would get consumer pricing, not the current higher price.

In Europe its been stated that a license that looks just like a sale is legally a sale. In America it is not clear (though the opposite is clearly true, if it doesn’t look the same a license is not a sale).

Amazon is clear that they are licensing not selling you books. Apple has a similar though not so clear policy with iTunes.

Copyright Office in 2001 was asked to offer an opinion. To have consumers resell they would need to delete after they hand over a copy and that’s not reasonable to assume we can trust consumers. What we would need is a formalized “forward and delete mechanism”. Since we don’t have this the Office said to wait to see how things go.

A forward-and-delete mechanism would have to be sure to delete all copies from the consumer. One idea is to have only one key and encrypt the eBook, so passing on the key would cause the eBooks to be useless.

Providers in this space: Lexink, ReDigi, Rekiosk.

There were failures in the music space: Weed, Peer Impact, File-Cash, Bitmuk, Bopaboo (various use of watermark and CRM)

ReDigi is of note right now. They take a cut of the resale and give labels or artists for music. Looks at watermarks or metadata in the files to delete copies on your computer. They admit this doesn’t work if you have one device running ReDigi and one device not.

ReDigi is being sued by Capitol Records (EMI) because they saw this as a first test case for Digital First Sales. The judge did not offer a preliminary injunction, which means the judge does not assume the trial will succeed.

The whole idea of First Sale is that the publisher has nothing to do with the second and preceding sales, but ReDigi is involving them. Also another question is if users violate the terms of use, does that trump copyright law?

OverDrive (who has an obvious vested interest) did a study that say libraries lead to sales for publishers via discovery. Publishers are skeptical of this. Given the current law, libraries don’t stand a chance in the eBook world. Furthermore Amazon directly markets AmazonPrime against libraries.

Libraries became involved with the Owners Rights Initiative, which is lobbying in Washington. They state: “if you bought it, you own it”. Other businesses are involved as well such as eBay, RedBox, GoodWill, Chegg, Powell’s, AscdiNatd, overstock.com, QualityKing, CCIA (they’re thinking of used copies of software), and of course ALA (there are others).

The big winners of digital first sales: Users, retailers that sell used, libraries

Neutral: authors

Losers: publishers, retailers that don’t sell used

Why do websites have a “buy” button when you are actually licensing? Shouldn’t it say “rent”? Well no because “buy” is what consumers understand.

Larger publishers could create their own libraries

Before digital, courts ruled in favor of “fair use” which allowed copying, but it was very specific about audio, video, and software. It may not apply to digital world since the laws were so byzantine and specific.

What about international? Europe has a concept of exhaustion. Things are more clear in the US because it has so many more lawsuits so more has been tested.