11.1.12 YOU DON'T OWN IT

This article originally appeared in the 11.1.12 issue of Metroland

I was disappointed to learn that the Future of Music Coalition’s annual Policy Summit has been shrunk down to one day.  It’s scheduled for Tuesday, November 13 at Georgetown University.   As I’ve mentioned before, this is the best indy music biz conference on the planet and normally I wouldn’t miss it.  But my November schedule is crushing, and the idea of scooting to DC and back for a one-day conference isn’t hitting me right.  We’ll see.  But if you can go, go!

            Moving on.  Several years ago, when the ebook thing was just starting, there was a bunch of controversy over what you got exactly when you "bought" an ebook.  In one of those turns of events that is so ironic it takes your breath away, Amazon, upon learning that its license to e-publish George Orwell’s 1984 was fraudulent, made all of the ebook copies it had sold magically disappear from its customers’ Kindles.  The outcry was so intense that Amazon’s Jeff Bezos apologized and said it would never happen again.

            Well it happened again.  Last week a Norwegian Kindle user found her Kindle locked, wiping out her entire ebook library.  When she asked Amazon why, she got vague assertions that she’d violated Amazon’s terms of service.

            As things sit today, while you think you are buying an ebook for $10, the seller thinks it's licensing you an ebook for $10.  And if, in the opinion of the seller, you misuse the license, adios biblioteque!   The sellers, like Amazon, are maybe being a little nicer about it after the 1984 debacle, but that’s still how they view things.  

            What the ebook sellers are trying to avoid is something in copyright law called the first sale doctrine, which says once you buy a copy of something, you can do pretty much anything you want with it except make more copies  (that right stays with the copyright owner).   In the physical world, it’s obvious – you buy a book or a CD or a print, and you can keep it, you can eat it, burn it, give it to a friend, sell it on eBay, etc.  In the digital world, the ebook sellers are all kinds of worried that people will go nuts and make copies of their ebooks for all their friends, post the book online, and generally do all of the stuff people do these days with music.  So they’ve created this fiction about licenses, and rigged the ebook files and ebook readers with little “phone home” capabilities that can erase your library should you dare misbehave.

            This issue is getting especially dicey with libraries that want to do what libraries should do with ebooks, lend them out   Publishers, which have always hated libraries, have no idea what to do.  Remember, ebooks are tethered, so a library can’t just go online and buy an ebook, because it can only be read on one device, or one owner’s devices.  So, for ebook lending to work, publishers need to provide libraries ebooks with looser controls, that can be moved across platforms, and shared with the public.   Several publishers have simply refused to allow this, and have kept their ebooks off of libraries' digital shelves.  Several publishers provide ebooks capable of being lent out, but gouge the libraries for as much as 300% of normal retail prices.  One publisher doesn’t allow its ebooks to work on certain devices it doesn’t like, and another electronically limits its library ebooks to 26 loans. 26.  One more than 25.

            What a stupid mess.  So it was shocking last week when a Random House executive announced, in an interview, that when libraries bought a Random House ebook, it owned the book.  It was not a license.  After this stunning comment bounced around the web for a couple of days, a different Random House executive dialed it back, saying that libraries “owned” their ebooks inasmuch as the libraries could move the ebooks across several preapproved platforms.  Meaning that libraries don’t own ebooks, they own licenses for ebooks.  Inasmuch my ass.

            The first sale doctrine came up this week in an argument at the Supreme Court.  It’s always exciting when the high court takes a copyright case, because it rarely does.  It’s also frightening, because it rarely gets it right.  This time, the case is about a kid who bought textbooks overseas and was selling them in the US via eBay. Scholastic publishers apparently assign wildly varying prices to textbooks in different countries.  Why?  Who knows!  But I suspect it has something to do with the fact that scholastic publishers are inherently evil.  In any event, the US publisher of the titles sued the kid.  The case comes down to whether copyrighted material bought in another country is subject to the first sale doctrine here in the US.  The publishers say no, which is of course insane.  You buy something (almost anything) in a foreign country and you can’t sell it here?   Really?

Paul Rapp is an area IP lawyer who is on his third day of back-up power, which was fun the first day, annoying the second day, and a real goddamn drag today.