BookFinder.com Journal

Can First Sale Doctrine exist in a digital age?

The First Sale Doctrine is an everyday part of life for used booksellers. If you are not familiar with the term it is essentially a limitation in the copyright act that allows the purchaser of copyrighted good to transfer (sell, lend, giveaway) said good without gaining permission from the copyright holder.  This limitation was recognized in 1908 after the case of Bobbs-Merrill Co. v. Straus, in which the publisher Bobbs-Merrill attempted to limit the price that the Macey's Dept. Store could sell their publications for.

This ruling has been, mostly, sufficient for regulating physical goods, however since the proliferation of digital media artists, producers, and consumers have been unsure how to proceed.  Can I lend someone my mp3 collection? Can I borrow a digital book from a library? Should a digital books have a lifespan?

I was reading a post on the Brave New World blog which got me thinking about this topic again.  If publishers want consumers to value digital books in the same way they value physical books they will need to solve this right of first sale, because until an eBook can be re-sold or in some way traded after initial use they will always be perceived like a permanent rental and something you don't actually own. 

In the Brave New World article they bring up an interesting service that I actually didn't know existed called ReDigi, who are currently being sued by at least one major record label.

Founded only last year ReDigi is different again and operates under the “first sale doctrine” legal concept, that allows users who buy a copyrighted item like a book or CD the right to sell it or give it away. ReDigi operates a ‘used music store’ where users upload unwanted songs and buy others at a discount. ReDigi claim that they can verify individual MP3 files were legally purchased and not ripped or downloaded from a file-sharing network. Interestingly the sellers must also install a ReDigi program on their computer that removes any copies of a song from the seller’s computer.

If publishers could get together and agree on a service like this which would allow the right of first sale to exist on digital files it would go a long way towards not only adopting digital media but literally "buying" in.  This is, of course, assuming you do not already prefer physical books, are not a collector of books and said books are not first editions, signed copies, leather bound, etc. In those instances this discussion is moot.

What do you think about digital books? Would a legal re-selling service make you more likely to buy e-books?

[Now Reading: The Difference Engine by Bruce Sterling and William Gibson]

HarperCollins to limit libraries on number of e-checkouts. Librarians boycott

HarperCollins has announced that its ebooks will only be able to be checked out by library patrons 26 times before a library would have to re-purchase the ebook title if they want to lend it again.  This has caused an outcry among librarians who have, in some cases, started boycotting Harper Collins ebooks.

I understand that in the publishers mind this is their way of trying to approximate for wear and tear on printed books which might require a library to repurchase copies which have been extremely well read but I thought 26 seemed to be a fairly low figure, even before watching this video by the Pioneer Library System of Oklahoma in which Swimming to Catalina by Stuart Woods was checked out 120 times and still going strong. 

You would think there would be a better way to do this.  Even if they just charged a dollar or two more for library version of the ebook which would offer unlimited lending, publishers would win on some longer tail titles and the libraries would continue to get their value for dollar on the popular titles.  Whatever the solution libraries and publishes are going to have to find a better one if we ever want to be able to borrow ebooks like we do their paper cousins.

[Now Reading: The Ghost Brigades by John Scalzi ... in hardcover, which I checked out of my local library]

Death to the book, long live the scroll

Just to beat the dead horse a little more

The discussion I brought up yesterday about copyrights of different book formats is really about the only thing going in book news right now so that is what you get to hear about.  This morning's Jacket Copy was quoting more music industry history lessons.  This time dredging up that that before cassettes were going to ruin the music business it was records... 

"That was a time when people thought records were really bad for musicians," said Gary Calamar, the co-author of "Record Store Days: From Vinyl to Digital and Back Again," a new history of (and unashamedly geeky paean to) the culture of the record store. "People were just getting used to electricity, and many artists resented the presence of records. They thought nobody would buy sheet music anymore."

It's not that the music industry is the only comparison for the book industry; it's just that changes they faced are a little fresher in our minds.  Thinking about this makes me wish I could travel back to 1500, just to hear a first-hand account from monks screaming about how Johannes' device was the work of Satan, and that the printing press would be the ruin of the written word.

I'm sorry, I swear I'll be off my soap box any second now...

[Now Reading: Heat by Bill Buford

Would you pay twice for the same book?

It's funny to think about but that is what we have to do currently if we want the same book in two different formats. It has always has been the case, and we never really questioned it because just say you bought a hardcover copy of The Grapes of Wrath, but years later wanted to re-read it while on vacation.  You might very well buy a copy of the paperback, so you don't get your nice hardback all soggy when you fall into the pool while reading it on an air mattress.  You had two copies, and because someone had to print them, ship them, and stock them, you paid for both of them.

Now, what about digital books?  You bought the hardcover, should you pay if you want to have a digital copy as well?

This exact debate has been flaring up again and again in publishing and reading circles for the past several months (years?) but really got going when the New York Times journalist Randy Cohen wrote in his Ethicist column that downloading a pirated copy of a book you already purchased new is pretty much O.K.

An illegal download is — to use an ugly word — illegal. But in this case, it is not unethical. Author and publisher are entitled to be paid for their work, and by purchasing the hardcover, you did so. Your subsequent downloading is akin to buying a CD, then copying it to your iPod.

Then one of my admittedly favorite authors, John Scalzi chipped in his two cents on his Whatever blog and essentially agreed with Cohen. 

If that work is out there online, and the guy who just bought an authorized version — thus paying me and the people who worked on the book — downloads it for his personal use, am I going to be pissed at him? No, I don’t really have the time or inclination. Maybe it would have been marginally more ethical for the fellow to have, say, scanned in each individual page and OCR’d it himself, thus making the personal copy he’s allowed to make under law, rather than looking for it online. And maybe I’d ask him how it was he got so knowledgeable in the ways of the dirty, dirty undernet, where pure and innocent books are exposed to bad people, and suggest to him that he get his computer checked for viruses. But at the end of the day, he did pay me, and paid my publisher.

Scalzi does go on to, correctly, explain that there are limits to this; and that an Audio book is different in that the reader and sound editors are entitled to their share, and obviously you can't download the Kite Runner movie just because you bought the book, but in general both of these gentleman bring up the interesting point that a digital copy of a book you legally bought is essentially the same as making a cassette tape copy of that The Who - Live At Leeds record you wanted to preserve from the ware you knew you were going to inflict on it by playing it 3000 times.

So you know how I feel, tell me know your position while we wait for the lawyers to tell how this will end. 

Authors slam reading aloud ebooks

While I like authors and am occasionally skeptical of ebook readers, the Authors Guild's slam against the Amazon Kindle 2 confuses the heck out of me.

One of the features of the upgraded Kindle is that it can read a book out loud to you, using a canned computerized voice similar to the text to speech systems available on many current computers.

Upon hearing of this, the Authors Guild told the Wall Street Journal "They don't have the right to read a book out loud. That's an audio right, which is derivative under copyright law."

Faced with pushback (including the suggestion that perhaps the Authors Guild would like to ban all reading aloud of books), the Guild retrenched, suggesting that publishers should consider forcing Amazon to add restrictions to books that could block access to the read-aloud feature.

This is absurd. Book owners can buy paperback books, and rebind them into hardcovers; companies like Brodart sell this service to libraries. It's as if the Authors Guild was trying to put Brodart out of business, claiming that rebinding paperbacks would infringe on their exclusive rights to sell hardcover rights.

There's been a lot written about this, but my favorite is Neil Gaiman's take.

"When you buy a book, you're also buying the right to read it aloud, have it read to you by anyone, read it to your children on long car trips, record yourself reading it and send that to your girlfriend etc. This is the same kind of thing, only without the ability to do the voices properly, and no-one's going to confuse it with an audiobook. And that any authors' societies or publishers who are thinking of spending money on fighting a fundamentally pointless legal case would be much better off taking that money and advertising and promoting what audio books are and what's good about them with it."

Google settlement: an author's view

Glenn Fleishman posted an excellent overview of the Google Book Search settlement, written from the point of view of an author. He touches on public access to orphaned works and other out-of-print works.

Posted by Anirvan

Google settlement

Last week, a proposed settlement between Google and the publishing industry that was released could have far ranging implications. Here are some highlights. Note: I am not a lawyer, I could be wrong, and this could be a settlement about Martian real estate.

Overview of settlement

• Settlement is responding to a class action suit that claims Google violated copyrights of authors, publishers and other owners of U.S. copyrights in books and other writings by digitizing (scanning) them, creating an electronic database of books, and displaying short excerpts without the copyright owners’ permission.
• The settlement is on behalf of publishers and authors; those who don’t want to be part of the settlement can opt out
• Google will pay $125 million to authors and publishers
• Part of the $125 million will go towards a new nonprofit called the Book Rights Registry which will collect revenue from Google and distribute it to authors and publishers. If this is reminding you of ASCAP that may not be too far off. The settlement mentions that the BRR might be able to bargain on behalf of authors and publishers with other companies in the future.

What rights Google has acquired

• Google will be able to scan and display books on the following terms:
  • Right holders of in-print books must opt-in
  • Rights holders of out-of-print book must opt-out
• Google can display any non-content text (e.g. copyrights pages, table of contents, indexes)
• Google will be able to sell electronic copies of complete books to users with some limitation on the users.
• Google can sell subscriptions of the whole database to orginizations
• Libraries and other public institutions will get a limited number of physical terminals that can access the entire catalog
• 65% of revenue generated from selling books, advertising on the pages, and subscriptions will be given to the rights holders

What does it all mean?

It’s really hard to predict what implications a deal like this will have. For users, it seems to be a win. They’ll get access to a large corpus of books that’s easily searchable and available for sale in a digital format. Say you’re a graduate student doing research on an obscure topic. You’re not worried about getting the physical book, but reading the contents. It’ll be easy to search and buy an electronic copy from Google. On the other hand, this deal is with Google right now. Others companies can’t take advantage of these terms, giving Google an immense advantage.

For booksellers, the sky may not be falling, but I think this is of concern. Most people who buy used books want to own a physical copy, so I don’t think this will be an instant death knell to booksellers. There are, however, going to be people who will be satisfied by the electronic copy so this will eat into some sales. I also think Google will be able to get some people who wouldn’t have bought print editions to buy the very convenient electronic edition.

Sources and further reading

• Official google blog
• Settlement agreement website
• Electronic Frontier Foundation settlement reader’s guide

Posted by Charlie

Orphan works suit dismissed

Brewster Kahle of the Internet Archive (a long-time BookFinder.com user) and Richard Prelinger of the Prelinger Archives challenged the legal basis for copyright protection of orphan works* in a 2004 lawsuit, Kahle v. Gonzales.

The case was recently dismissed by the U.S. Court of Appeals for the Ninth Circuit, upholding a lower court decision—further frustrating the possibility that we’ll ever be able to buy, use, or cite extensively from the millions of works that have fallen into the “orphan works” category.

More coverage:

• Reuters via Yahoo! News
• Christopher Sprigman, Stanford Law School
• Internet Archive
• Full court decision, in PDF format
• Reaction from Larry Lessig

* Orphan works are copyrighted materials whose owners are difficult or impossible to locate, meaning they can no longer be purchased, reprinted, cited at length, or otherwise built upon. Books can get “orphaned” for all sorts of reasons. Publishers shut down. Authors move, change their names, or pass away. Under U.S. copyright law, academics, artists, researchers, and plain-old-readers have no recourse if the copyright holder can’t be contacted.

Posted by Anirvan

Kevin Kelly on digitizing books

Wired magazine founder Kevin Kelly wrote an interesting piece in the New York Times magazine about the digitization of books by Google and others, and how that intersects with publishing models, copyright law, orphan works, and the long tail. It’s an old story by now, but he writes it well. Read the article online (single-page version).

[Now Reading: Foxy-T by Tony White]

Posted by Anirvan

Final orphan works report

Last spring, the US Copyright Office asked the public for comments about their experience with copyrighted orphan works (*), and suggestions on solutions to the problem. BookFinder.com made a submission, as did hundreds of others.

After several months. the US Copyright Office has released their final 133-page report based on their study. They suggest changing copyright law so that that users of orphaned works who do reasonably diligent searches and attribute the use of works will enjoy the following protections:

• the user will have to pay only “reasonable compensation” if the owner resurfaces and objects to the use
• non-commercial users won’t have to pay a fine if the owner resurfaces and objects to the use, as long as use of the work is stopped immediately
• if the orphaned work has been used as part of a larger work containing significant expression, then the entire larger work can’t be shut down as long as the user pays reasonable compensation

We’ll continue to track the issue, to see if the recommendations are taken up…

* Orphan works are copyrighted materials whose owners are difficult or impossible to locate, meaning they can no longer be purchased, reprinted, cited at length, or otherwise built upon. Books can get “orphaned” for all sorts of reasons. Publishers shut down. Authors move, change their names, or pass away. Under U.S. copyright law, academics, artists, researchers, and plain-old-readers have no recourse if the copyright holder can’t be contacted.

Posted by Anirvan