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