Reporting on a Science and Technology Law Review article about copyright and ebooks, Gizmodo's Matt Buchanan has written a great piece on the way that hardware ebook readers (Kindle, Sony Reader) run on stores that only license -- instead of selling -- books to you, even though they encourage you to think of the books as a purchase, saying things like "buy it now for the Kindle!" Books that you own can be loaned, re-sold and given away, and the ongoing health of the book trade and reading itself relies on this -- how many of your favorite writers did you discover at a used bookstore, or when a friend passed you a copy of a book?
It's funny that in the name of protecting "intellectual property," big media companies are willing to do such violence to the idea of real property -- arguing that since everything we own, from our t-shirts to our cars to our ebooks, embody someone's copyright, patent and trademark, that we're basically just tenant farmers, living on the land of our gracious masters who've seen fit to give us a lease on our homes.
In the fine print that you "agree" to, Amazon and Sony say you just get a license to the e-books–you're not paying to own 'em, in spite of the use of the term "buy." Digital retailers say that the first sale doctrine–which would let you hawk your old Harry Potter hardcovers on eBay–no longer applies. Your license to read the book is unlimited, though–so even if Amazon or Sony changed technologies, dropped the biz or just got mad at you, they legally couldn't take away your purchases. Still, it's a license you can't sell.
But is this claim legal? Our Columbia friends suggest that just because Sony or Amazon call it a license, that doesn't make it so. "That's a factual question determined by courts," say our legal brainiacs. "Even if a publisher calls it a license, if the transaction actually looks more like a sale, users will retain their right to resell the copy." Score one for the home team.
My latest Locus Magazine column is DRM Broke Its Promise, which recalls the days when digital rights management was pitched to us as a way to enable exciting new markets where we'd all save big by only buying the rights we needed (like the low-cost right to read a book for an hour-long plane ride), […]
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