On September 20, 2014, I became the proud owner of my very first ereader–a Kindle Paperwhite. After years of avoiding ebooks because I preferred the texture of paper, a life in Japan had left me yearning for English language books that didn’t cost an arm and a leg to have shipped across the pond. I even bought a nifty case that made my Kindle feel like a real book. My journey into owning a digital library had begun.
What I didn’t know at the time was how many restrictions that content came with. All I could see, as a casual consumer, was that any ebook I wanted to purchase would cost the same as a paperback or hardcover edition.
Of course, I would learn later the many intricate reasons behind this pricing model, but that’s a tale for another day. More to the point was the idea that I was receiving as close to the same product regardless of what format I purchased it in. Which one would expect, given how much you pay.
That’s not actually the case.
When a consumer buys an ebook (regardless of the retail site), they are not actually buying a book. They are buying an extended lease to the content. That content is not only chained to the platform you got it from (through DRM), but it is also, contractually, linked to your current account, and that account alone.
Have you ever tried to transfer iTunes purchases to a brand new account? Move an old MP3 library to a shared computer? Maybe you tried to download an ebook you previously purchased from an account where the credit card on file is now expired. Perhaps you attempted to share an ePub or MOBI file with a friend the same way you would lend a physical book. Maybe you wanted to bequeath your digital library to an heir.
No matter your motive for trying to move that content from one device to another, you’d be violating the lender’s term of service. As snarky Mr. Know-It-All Brendan I. Koerner from Wired states:
If convenient euphemisms could somehow be outlawed, the “Buy now with 1-Click” button on Kindle pages would have to be relabeled “License now with 1-Click.” Amazon’s terms of service clearly state that, unlike those bulky slabs of arboreal matter that imparted knowledge to generations past, Kindle books can never be owned in the traditional sense. Instead, your $12.99 merely earns you the right to view the work on your Kindle. This arrangement gives Amazon the authority to snatch back that content if the company thinks you’ve been naughty—say, by copying and distributing ebooks or by engaging in fraud with your account.
Look at it from Amazon’s perspective: Part of the rationale for letting you resell old-school books is that you can do so only once—after the transaction is complete, the physical book is, by definition, no longer in your possession. That’s not necessarily the case with ebooks, which can be duplicated with ease. If Amazon grants its customers true ownership of Kindle books, it will have no quick recourse against scoundrels who resell books multiple times without deleting the original. Wiping someone’s Kindle stash is a lot easier than filing a lawsuit.
Which brings me to a court case happening in the U.S. Court of Appeals this week. ReDigi, an online marketplace that enables the resale of “used” digital content, is being sued for by Capitol Records for copyright infringement. The case could very well set a new precedent for what ownership means in the digital world, and ebooks could be greatly affected (self-publishers should probably pay attention, too).
ReDigi emerged in 2012 with a patent that promised “copyless” resale of digital products, including music, audio books, ebooks, and anything else that can be transferred via the Internet. As described in court filings, ReDigi works by running continuously on the user’s computer, ensuring that any music listed for sale on their site no longer exists on the seller’s computer.
The case is of interest to more than authors, as retailers like Apple and Amazon have also taken out patents on similar services. It was certainly of concern to the Association of American Publishers (AAP), who added their own evidence to the court via an amicus curiae:
The Association of American Publishers (AAP) today filed an amicus curiae brief in Capitol Records, LLC v. Redigi, Inc., an important copyright case concerning whether “used” creative digital content can be resold in the online environment. AAP has urged the U.S. Court of Appeals for the Second Circuit to affirm the district court’s decision, which found no plausible legal interpretation under the Copyright Act that would permit a company to reproduce and resell digital music files without a license. In addition to rejecting application of the “first sale” doctrine under Section 109 of the Act, the district court found that all four factors of fair use under Section 107 weighed against the defendant ReDigi which has appealed the decision.
In its brief, the AAP notes that the rapid growth of digital publications (including eBooks, professional and scholarly publications, and adaptive educational content) make the threat of Redigi’s business activities to publishers and their markets “not hypothetical.” AAP explains the critical interest of publishers in ensuring that federal courts apply the first sale doctrine as a defense against infringement pursuant to the plain meaning of the statute, which limits application of the defense to situations where the owner of a lawful copy of the copyrighted work embodied in a tangible “material object” chooses to distribute that particular copy. The owner of the lawful copy cannot assert the defense if distribution of the work is achieved by reproducing the copy.
Putting aside the somewhat distracting argument of whether ReDigi’s business is copyright infringement or not (which allows publishers and retailers to brush aside the bigger issue of ebook cost and ownership), this case could be a pretty big deal. If the court rules in ReDigi’s favor–citing the existence of used book, CD, vinyl, and DVD industries–the ebook game could change pretty drastically. The ability to resell an ebook would mean that books, which are less likely than music to be revisited, could be discarded after they are read or abandoned, diminishing the need for anyone to buy an ebook “new.” In effect, the ebook industry would turn into a rental economy, and ebook rentals (and subscription services) haven’t done well in the past.
Why Should Authors Care?
If this all seems like problems for the publishers and readers, there’s another point to be cognizant of: royalties.
Currently, the used book market is really the one place where authors do not collect royalties on legitimate sales of their work. Authors are entitled to royalty only on the first sale of their book, whether that happens on Amazon, iBooks, or in a brick and mortar store. Depending on what country you live in, you might even have access to a fund that provides you some cash to offset what you might have lost by having your book in a public library.
But there’s no way to track an author through the system when it comes to resale, so it’s simply not done. While the U.S. Supreme Court rightfully protects the right for consumers to resell tangible objects, digital files don’t degrade or corrode over time. Unless the technology format completely changes (which happens), the file is usable, and re-downloadable, as often as the user likes, as functional as the first time. The concept of “used” digital media is pretty ridiculous.
For authors, and especially self-published authors (who see, on average, smaller returns for each individual sale due to competitive pricing), a used ebook market could mean a deep cut into their annual profits, with no recourse. The self-published community has worked hard to build perceived value into ebooks since the $0.99 craze years ago, with average ebook pricing now sitting at $3.99 for most fiction titles. Used ebooks could see that number crash to the same microscopic numbers again.
The Other Side
Of course, it isn’t all bad news. If the court recognizes that the fight isn’t with copyright, but with ownership of the object, that might make retailers and publishers alike rethink how they define an ebook. After all, if you’re paying the same price, you should be getting the same product. What do you all think? Would you prefer a market that fairly prices “leased” ebooks in juxtaposition with their physical counterparts, or would you rather keep the current pricing model, and do away with DRM (and truly own your ebook) permanently, even if that ushered in a secondary used ebook market?