Used Ebooks

August 8, 2014

So much hinges on copyright. The doctrine of First Sale meant that publishers couldn’t lock libraries out of the market. But digital works, like software, got swept under licensing agreements, with the power to place all kinds of restrictions on the sale resting almost entirely with the copyright holder. Typically, it’s worth pointing out, that is not the creator of the digital work; it’s the publisher. 


Licensing also has meant—in the United States, anyhow—that there are no such things as used ebooks. Consumers pay top dollar for anything that isn’t Creative Commons, public domain, or by an unknown author; in other words, when an item is new or resurgent (after it gets made into a movie, for instance), consumers rent access to it through various vendors (mainly Amazon, Kobo, Google, and Apple). 


That’s how it is in the United States, anyhow, where copyright is a corporate asset and is zealously protected and expanded.


But things seem to be different in the European Union, at least based on a recent ruling by the Amsterdam Court. A Netherlands-based online retailer of used digital media, Tom Kabinet, was sued by some EU publishers who made pretty much the same arguments as US corporations. But digital material never deteriorates! Cheap secondary markets will stifle innovation! However, the EU court saw things differently: It judged that such sales were not illegal. 


The result? There was such a surge of traffic to the Tom Kabinet site that it crashed at first. Publishers aren’t happy.


Another decision (PDF file) dating back to 2012 extended the principle beyond ebooks. The Court of Justice of the European Union stated that “An author of software cannot oppose the resale of his ‘used’ licenses allowing the use of his programs downloaded from the internet. The exclusive right of distribution of a copy of a computer program covered by such a license is exhausted on its first sale.”


The internet is a global network. The technical logistics of distributing a book or movie made in America directly to, for instance, Belgium, are trivial—one click. The problem is copyright. But now there are two starkly different approaches to it. Speaking on behalf of the reader, that’s good news. I would think it’s also good news for libraries. Speaking on behalf of authors, it’s not clear that they’re getting such a good deal from the EU rulings. And for the publishers? It looks like even more uncertainty.