Music “First Sale” Ruling May Protect Ebook Authors

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In America, we are willing to accept convenient lies as long as they serve some greater purpose, real or imagined. One of those lies is that a politician’s personal life doesn’t affect his or her public decision-making. Or that an unborn child is not really a person. Or that heterosexuality is just an option, and that society will not be harmed if alternative sexual alliances are permitted.

In the publishing world, there is an emerging convenient lie that says you can resell “used” ebooks. Amazon recently patented a system to do this, and it is bound to decimate an already low ebook pricing structure.

Seal of the United States Copyright Office, in...

Amazon and others believe they have the right to resell used ebooks based on the “First Sale” doctrine of the U.S. Copyright Law. Essentially, that doctrine says that after a book (or other copyrighted item) is sold, the buyer has a right to resell it without requiring permission from the copyright holder.

That makes perfect sense for physical items like books. They buyer cannot make copies of the book, but is free to sell the copy he or she owns.

The right of First Sale makes no sense at all in the digital world. If someone buys a Kindle copy of your book, for example, they can read it and “resell” it while keeping a copy on their computer.  The buyers of used ebooks can repeat the process almost infinitely, so sales of new copies of your ebook will drop to zero.  Amazon and other such companies will continue to make money off the sales of what are essentially pirated books, but the rights of copyright holders will be abrogated.

The U.S. Copyright Office agrees. In an Executive Summary, the Copyright Office said, “the transmission of [digital] works interferes with the copyright owner’s control over the intangible work and the exclusive right of reproduction. The benefits to further expansion simply do not outweigh the likelihood of increased harm.”

U.S. District Court Judge Richard Sullivan thinks the Copyright Office has it right. In a case involving a record company and a seller of “pre-owned” digital music (Capitol Records vs ReDigi),  Sullivan ruled this week that, “It is simply impossible that the same material object can be transferred over the Internet.”

He said, “Because the reproduction right is necessarily implicated when a copyrighted work is embodied in a new material object, and because digital music files must be embodied in a new material object following their transfer over the Internet, the court determines that the embodiment of a digital music file on a new hard disk is a reproduction within the meaning of the Copyright Act.”

Sullivan ruled that because songs sold on ReDigi are not unique physical items but “reproductions of the copyrighted code embedded in new material objects, namely, the ReDigi server in Arizona and its users’ hard drives,” the First Sale Doctrine does not apply.  Adding what some believe to be well-deserved legal insult to ReDigi’s injury, Judge Sullivan found that ReDigi was liable for both directly infringing copyrights, and also for contributing to the infringement carried out by its users, and profiting from it.

ReDigi claimed they had technical services in place to verify that the file was unique, but the judge viewed that as so much smoke and mirrors.  ReDigi also said they had a “Fair Use” right to use copyrighted material while it was being recopied, but the judge rejected that claim.

This ruling bodes well for ebook authors. Amazon and others say they are implementing systems to guarantee they are not making unauthorized copies, but that seems unlikely considering the judge’s ruling, which is sure to be appealed. Amazon and the other ebook companies could require authors to give up or dilute their copyright in order to publish their books in the first place, but such alleged “legal coercion” would be a huge public relations blow to them.

Hopefully, this court decision will be a warning shot fired over the bow of would-be pirates who are intent on using evolving technology and the existing copyright laws to deprive content creators of their intellectual property rights.

Amazon and others are just one convenient lie away from doing exactly that. All they need to do is convince lawmakers that their unauthorized copying is really something different, and then they will be free to plunder the creative community.


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