Publishers File Appeal in Lawsuit Against Used eBook Website

12.09.2014 Nate Hoffelder 2 Comments

The legal woes of the used ebook site Tom Kabinet continued last week as publishers filed an appeal of the July injunction which declared the site legal.

Launched in June 2014, TomKabinet.nl offers a marketplace where consumers can resell the ebooks they have purchased. The site collects a fee on each sale, but aside from offering basic preventative measures against cheating and limiting sales to only DRM-free or DRM-light ebooks, the site is a facilitator and not a seller.

With around 8,000 titles listed for sale at last count, Tom Kabinet is growing in popularity among readers, but the same cannot be said for publishers. It was sued in July for copyright infringement, but much to everyone’s surprise the judge ruled in favor of the site.

The July ruling was the rough equivalent of what would be a preliminary injunction here in the US, but in spite of its less than definite nature the publishers chose not to follow through with a lawsuit. Instead, they waited and filed an appeal last week.

The specific details on the appeal are not available, but Boekblad reports that GAU, a Dutch book industry trade group,has filed the appeal. It’s not clear why they waited so long, but the timing would suggest that they were waiting for a similar case to play out in Germany.

Two weeks ago I reported on a lawsuit brought by the consumer rights group VZBV on behalf of consumers. VZBV believed that consumers had the right to resell the ebooks they bought, but for various legal reasons the courts disagreed.

That ruling in Germany found that the UsedSoft decision, which guaranteed that consumers have the right to resell the software they bought, did not apply to ebooks because they were governed by two different parts of EU copyright law (the software directive and the copyright directive).

Leaving aside whether that splitting of legal hairs makes any sense, there are now two contradictory legal decisions on this copyright issue in the EU.  As a result the issue has been passed upwards to the European Court of Justice to decide.

It’s difficult to predict which way the ECJ will rule. I for one am hoping that Tom Kabinet has as much luck as ReDigi, which "lost" a smiliar lawsuit over the resale of music here in the US in 2013. ReDigi offers a similar marketplace where consumers can resell mp3s, and it was sued in 2012 for facilitating copyright infringement. That lawsuit defined how ReDigi could change their operation and remain in business, and they were even awarded a patent earlier this year for their marketplace platform.

Thanks, Martjin!

image  by Phil Roeder