Mike Shatzkin has an interesting post in which he makes the claim that (1) readers never own an e-book; they just own a license, and therefore (2) readers should stop complaining about DRM and the lack of the right of first sale, things that are “silly conversations” in the digital world.
The second point first: Shatzkin’s post is an exercise in circular logic, because the legal intricacies of license versus ownership are totally irrelevant to the questions he purportedly dismisses.
It is not enough to say “an e-book is only licensed.” Licenses have content that restrict use. There is no magical default license language in the sky–publishers and distributors set the terms of the license. If the publisher says, “you may not lend your e-books,” the license that the reader gets does not allow lending. If the publisher says, “you may lend your e-books,” lo and behold, lending is allowed.
It begs the question (note the correct use of the phrase, please) to say that readers should not complain about DRM because they have a license. Why the heck can’t readers complain about a license, when the terms of that license are dictated by the publisher? Even assuming that Shatzkin is right about the license/ownership debate, why is it a “silly conversation” to talk about the terms of the license? It’s not silly to complain when you are paying more for books where you receive fewer rights.
Saying “because it’s a license” doesn’t answer any of those questions. It just tells you why you have the questions in the first place. The question of license versus sale is irrelevant to the question of the content of the license. It is never a silly question for consumers to say to producers, “We would like a different license, please.”
There should be a name for the logical fallacy of equating “legal” with “unarguable,” but in an event, that’s what Shatzkin is doing.
Now we come to the second count: Shatzkin basically asserts that you don’t own your e-book; you merely have a license to use it. This is a categorical claim that does not track the (still unsettled) law on the question. As a note, I think Shatzkin is confusing ownership of the copyright with ownership of a copy.
To make the distinction clear: I own a copy of this paper book that I am holding in my hand. (It happens to be Tiffany Clare’s The Seduction of his Wife, in case you’re wondering.) I bought it at the store. Buying that copy gave me certain rights: the right to read it, to read it aloud, to give it away on my blog, to lend it to a friend, to resell it to someone else. I have the right to make an archival copy for personal use. I own a copy.
I do not own the copyright, nor do I have a license to distribute. That means that I cannot make photocopies of the book and distribute or sell them.
Now, let me start this off by saying that I have never seen anything that suggests that you cannot sell a digital copy. If anyone can point me to that, I’d love to see it. It’s true, however, that most sellers would prefer to license digital copies. This is because the seller retains more control that way. But no person can categorically state that all e-books are merely licensed and not sold. If you want to know if you have a license or a sale, you have to look at how the item in question is transferred. In Vernor v. Autodesk, the Ninth Circuit explained:
A software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.
(For reference purposes, the Ninth Circuit falls on the “more likely to read as a license” bit of the license/ownership debate; this debate is not over by any means.)
Under this standard, I suspect at least some of the e-books I have purchased are in fact sales and not licenses. It’s also quite clear to me that nobody can say, “you didn’t buy your e-books!” without looking at the terms of the transfer. And someone who says, “Gosh, we’re all calling them sales, and that’s wrong!” needs to look at factor (1) in the standard above and ask, “If we are calling them sales, can they actually be licenses?”
Of course, my analysis doesn’t mean that we must perish under Shatzkin’s parade of horribles, in which one person buys one copy and then transfers it to infinity and beyond. The transfer of the digital copy requires you to effectively make a copy–something you can’t do with a print copy–and it’s an open question whether that is allowed for owners of a copy. You’d probably have to have a license to do that.
By the way, for those of you who are wondering what I mean when I say “I suspect that some of the ebooks I have purchased are sales,” I mean that about a year ago, I did a brief test, going to the direct-purchase websites of many e-publishers, going through the purchase process as if I were a new customer, looking specifically for terms of the agreement.
I doubt some of the publishers would pass the “license” test. For instance, the Wild Rose Press mentions an End User License Agreement, but no such license is offered at any point during the purchase process, and a search via Google to try and find the thing yielded nothing.
I could go on, but suffice to say, I sincerely doubt that I have a mere license for some of the books I’ve purchased. That may have changed in the last year, but there are enough e-publishers out there that I bet you I could still find a way to get ownership of some copies rather than licenses.
Brilliant and useful as always…and can I just say how happy I am to see someone use the phrase “beg the question” correctly? Warms my little literary heart!
I believe others who read my post (thanks for the link) will see that I did NOT suggest that a license couldn’t do any of the things you said it could do. What I said is that FIRST SALE rights — the granting of those rights WITHOUT a license purely by the fact of a “sale” — was an illogical expectation. A subtle restatement of my argument can make a hash out of it. It is the application of first sale rights to digital goods that I questioned the logic of.
So let’s see. You agree with me that ebooks could be sold and not merely licensed.
At that point, by the operation of 17 U.S.C. s. 109, the owner has the right to transfer and dispose of the copy. You may think this is illogical, but I’m not sure how that’s relevant.
More generally: your clarification still feels inherently circular. Why is it “illogical” for purchasers to talk about the loss of their first sale rights, when on its face, the publishers’ choice to license (rather than sell) on the terms indicated clearly means that purchases aren’t getting first sale rights?
What you are saying is that it is “illogical” and “silly” for people to expect that they would get first sale rights because they are not getting first sale rights.
You say: “The complaint that first sale rights are being abused — often delivered as a complaint about publishers — proceeds from a fundamental misunderstanding that publishers themselves are entirely responsible for creating.”
What, precisely, is the fundamental misunderstanding? Consumers believe that if they had a print copy, they could lend it. Consumers believe that because of a choice made by the publishers, they cannot do the same thing with an electronic copy. Consumers, in fact, are right about both points, and are unhappy.
But when they complain, you “grit your teeth” and think that this is just a “silly conversation.”
This is not a “misunderstanding,” Mike. It’s a “disagreement.” Do you really think that if someone sat down with a digital ebook consumer and explained that it was a license rather than a sale, that they would be any less pissed off?
I’m an author. I understand how dangerous infinite transfers of digital works can be. I get that there are some problems with an overzealous right of first sale in the digital world. I’m not particularly worried, because I have no doubt that if it came down to it, Congress would cabin the right of first sale for digital books just as they’ve done for software.
But if you can’t even make yourself see the logic of the other side, you probably aren’t trying very hard.
I guess it is true in theory that an ebook can be “sold”: a file transferred from one to another with no controls and no rules. But no commercial publisher would ever do it. They only “sell” access to an ebook (which is why they use the hated DRM). If I understand you right, you are saying that the copyright violation line is crossed if you COPY the ebook file, but not if you actually “give” the file to somebody else and don’t retain a copy. An interesting distinction. But since I have NEVER given somebody a file, but only ever sent a COPY of a file to somebody, and, except for deleting it after sending a copy would I even know how to give it without keeping it, I think it’s a cute distinction, but not a real one.
I usually take the last word on my own blog. I’ll announce in advance that I’m giving you the last word on yours. Thanks for a challenging exchange. It will be interesting to see where the law for both music and books ultimately comes down on this matter. Commenters on my blog think it has already been decided “it’s a license” but I think in the digital world there are few final answers yet.
Well, there you go. His company advises publishers about digital change.