If Selling Used Software is Legal Then Why Not Used eBooks?
The one thing that publishers like most about ebooks is that you cannot resell them. This precludes the used book market (aka the bane of publisher’s existence), but if a recent court ruling in Europe means what I think it does then that’s about to change.
Zeit is reporting that Oracle has just lost a case in Luxembourg. According to the European Court of Justice (ECJ), software publishers have no right to claim copyright infringement when someone resells a software license. In the US we would say that the court affirmed the "first sale" doctrine; Europe has a similar legal principle.
This particular case involved a Munich-based company, UsedSoft. They specialized in buying and reselling used software licenses (which the original buyers are no longer needed). While that in and of itself is not a shocking activity, a close reading of the license doc itself showed that Oracle forbids resale (they all do, pretty much). According to this new ruling, that clause isn’t enforceable in Europe.
That is of particular interest to anyone who reads ebooks. You see, most every ebook is sold under a license that includes a similar – and now unenforceable in Europe – clause. Here’s what Amazon says:
Unless specifically indicated otherwise, you may not sell, rent, lease, distribute, broadcast, sublicense, or otherwise assign any rights to the Digital Content or any portion of it to any third party, and you may not remove or modify any proprietary notices or labels on the Digital Content.
Sorry, Amazon, but according to the ECJ at least one of those clauses isn’t valid anymore (though it will likely take a lawsuit to get Amazon to admit it).
Now, some might argue that this also invalidates the DRM on the ebooks, but I’m not so sure. This ruling only covers transferring the content to a new owner; DRM currently prevents it but that’s a technical issue, not legal.
And do you know what? I think Amazon will love this ruling (once they calm down). Amazon is currently a great place to find used paper books, and I bet they’d love the chance to take a commission when people sell used Kindle ebooks to one another.
Note that this would involve 3rd party sales, just like the current used book market on Amazon. All Amazon would have to provide is a mechanism to remove an ebook from one account and authorize it to another. That’s a technical issue, and best of all (from Amazon’s viewpoint) they don’t have to unlock the DRM.
That sound you hear right now is a thousand publishers saying "oh, crap". Their greatest enemy is positioned to build another secondary market which the publisher can’t touch. I bet you hadn’t thought of that one, had you?
image by upyernoz