I wanted to give a brief policy overview, both for and against, the application of the first sale doctrine to eBooks. In other words, the arguments for and against allowing the sale of “used” eBooks.
I’ll go into the actual legal arguments (theory, doctrine, what have you) in a later post. I know you’re going to be waiting on that one with bated breath. If you want a preview, go and read the ReDigi district court opinion.
Most writers I’ve run across have VERY STRONG opinions on this subject, and all in one direction. (“I say we take off and nuke used eBooks from orbit. It’s the only way to be sure.”)
So naturally, keeping my audience ever in mind, I’ll start with the other side.
The policy arguments for permitting the resale of eBooks:
- Consumer protection thing 1. Some believe that converting sales of books from physical objects to technologically limited files negatively effects the consumer. It shifts power to the publisher and may ultimately reduce the value of what the consumer gets for the money. Some variation on same price/less value or lower price/much less value. The value in that formulation could relate to the monetary value in terms of resale possibilities or the longterm value of possessing something that will not disappear if you lose a password or device.
- Consumer protection thing 2. The lack of a secondary market (i.e. used market) will eventually lead to inflated prices. The availability of used books at a cheaper price than new books acts to decrease prices of new books. Eliminating the used market would therefore, it is argued, lead to increased prices.
- Copyright expansion. From a historical perspective, whether you consider the last two decades or the last two centuries, copyright has expanded GREATLY. This is true in terms of both the scope of rights given to the holders of copyrights and of the duration of the rights. The balance created by the first sale doctrine is seen as a small limitation on expansive copyright rights, whether you view that balance as stemming from personal property rights or from an exhaustion doctrine. (Okay, okay, I’ll save the theory for later. Hey, I’m a law professor – what do you expect?)
The policy arguments against permitting the resale of eBooks:
- Lack of degradation. Physical books break down. Their covers get bent, their spines are broken, . . . they get ratty or even fall apart. eBooks do not break down. A “used” eBook is identical in quality to a “new” eBook. With physical books, a purchaser of a new book would get something different than the purchaser of a used book, just as the purchaser of a new car gets something different than the purchaser of a used car. Mmmm, new book smell. Under this thinking, “used” eBooks would be much stronger competition for new sales. With physical books, there are reasons to buy new; not so, it is argued, with eBooks.
- Frictionless markets. Finding the used book you want can take more time than finding a new version. Maybe your local used bookstore doesn’t have the one you want. In other words, it may be easier to buy a new copy than to find a used version. (Amazon’s used book system for physical books may make this less true than it once was.) For eBooks however, because geography is taken out of the equation (the only “geography” remaining would be finding the correct website), it would be just as easy to find a “used” eBook as it would be to find a “new” eBook. Like the degradation problem, this would increase the competition new would face from used.
- Lack of resale being built into the price. I’ve heard many authors say that what they are giving the reader for the price paid is not something that can be resold. In other words, the lack of ability to recoup a portion of the original purchase price through the resale of the “used” eBook is already built into a lower original price.
- PIRACY. PIRACY. PIRACY. This is the dominant player for many in the ‘con’ camp. People just don’t believe users would not simply make a copy of an eBook and then sell the eBook in the used market. Most people arguing the “pro” side assume, for the sake of argument, that copy protection would be good enough to prevent this if we were to end up with a used market for eBooks. ReDigi claimed to monitor users’ computers to insure duplication did not result in their transfer of “used” mp3’s. As long as the belief that copying could happen on a rampant scale, this concern will dominate policy debates.
I’m not here today to declare a winner between these arguments, but I will offer two thoughts, that I will call “sideways.” That is, they come at the dispute not from a “pro” or “con” view, but from the “side.” Both of these stem from thinking about re-evaluating, in light of new technology, the incentive/public benefit calculus at the heart of copyright.
- We might consider a departure from monolithic copyright. Doesn’t that sound like an impressive term – “monolithic copyright”? (Professor, remember?) What I mean by that is that maybe what works for one type of art might not work for another type of art. So, we might do something different for music than we would do for books. Books are quite often read once and then not read again. (At least for most books with most readers – we don’t need to go into how many times I’ve read the Harry Potter series.) Music is different; most people don’t listen to a song and then never listen to it again. Music is experienced over and over again in typical usage. Because of this difference, a secondary (“used”) market for MP3’s may make more sense than a secondary market for eBooks.
- We could create a middle ground. We could permit the resale of eBooks, but legally mandate some sort of payment to the copyright holder. This would be a compulsory license akin to the mechanical license available for musical composition copyrights.
That’s a quick and (hopefully not too) dirty overview of the policy debates surrounding “used” eBooks. If you think I’ve left out any arguments for or against, I’d love to hear about them in the comments.
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