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"Should It be Legal to Resell eBooks?" Is the Wrong Question

26275741896_f13424d302_bArs Technica UK is using the ongoing court case against Tom Kabinet to ask whether consumers should have the right to resell digital content, but I think they’re asking the wrong question.

This two-year-old used ebook marketplace is currently waiting a ruling by the Supreme Court of the Netherlands on whether its business model was legal under Dutch law. The court is widely expected to punt the case upwards to the European Court of Human Justice for an EU-wide ruling which would settle the issue once and for all.

That ruling is due next week, but in the meantime it has sparked a debate over whether consumers should have this right.

However, should the resale of digital goods be legal?

 "If you’re going to start reselling digital goods, who would be the fool who buys the original book?" asks Martijn David, the secretary general of the Dutch Publishers' Association. "A second-hand car is not new. A second-hand book is a second-hand book. A second-hand digital file [is] like a car which runs forever. It’s completely different from the physical world, where second-hand means less quality."

Additionally, as David points out, digital files can be replicated: "Authors and publishers fear that their business model, which is already under enormous pressure, will completely vanish, and nobody will make money, except for people like Tom Kabinet," he said. "They don’t make any investment, they don’t do the marketing or translation, and they simply get a share of that sale."

"I’m coming from a very different point of view," says Marc Jellema, the CEO of Tom Kabinet. "If you buy something, it is your right to actually resell it. With something I buy from a consumer rather than a reseller, the term we use is 'second-hand.' It has nothing to do with it being older or of less quality."

The problem with phrasing the question as "should" is that many authors and publishers are going to look fearfully at the used book market, and then vote with their pocketbooks.

Consumers may or may not vote with their pocketbooks, and come to the opposite conclusion. (It’s not clear how many active ebook buyers really care about this point.)

I think it would be better to frame the question in terms of context.

Should consumers pay more for ebooks than paper books (price), and get less in return (less control)?

It’s not just that ebooks are priced as high as new print books, but also that they often cost more than the used print books which are readily available online. I know from personal experience that the average price I pay for paper books is less than what I pay for ebooks because I am a price-conscious consumer.

Those used books can be sold, and the cost recouped, but consumers cannot resell the more expensive ebooks.

So consumers are literally paying more and getting less.

And for what?

If you’re going to argue that ebooks will be around forever while paper will eventually degrade, I’ll ask you to point me to where I can download my MSReader format ebooks. (I’ll wait for your reply on pins and needles.)

And if you’re going to argue that even with DRM, ebooks don’t degrade, I will remind you of what xkcd had to say about it:


As it stands, the odds are in favor of a print book outliving the corresponding ebook, even though the latter costs more.

The real question, in my opinion, is why consumers _shouldn’t_ have the right to resell ebooks?

Is there a single argument which doesn’t boil down to someone objecting because they’re going to take a hit in the pocketbook?

image by owlpacino

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Scott Nicholson May 26, 2016 um 5:27 pm

You’re overlooking a critical issue, and so are the courts–ebooks are licensed, not sold.

Nate Hoffelder May 26, 2016 um 5:34 pm

So is music, and ReDigi can resell it. So is software, and you can resell it in Europe. In both cases the court overruled the license.

And for the record, I didn’t over look that point; in fact I addressed it a few years ago. We know exactly how it could work: by transferring the license rather than ownership.

Dan Meadows May 26, 2016 um 6:31 pm

The courts there didn’t ignore that. They ruled, more than once, I believe, that the manner in which they’re licensing ebooks is indistinguishable from a sale and I tend to agree. The licensing model is a scheme to get all the benefits of a sale for the producer but with none of those pesky consumer rights.

poiboy May 26, 2016 um 6:38 pm

meanwhile, people file share their ebooks with friends peacefully without concern (just like physical books).

Cole Mak May 26, 2016 um 6:50 pm

The terms, and conditions, and DRM of most ebook sellers clearly indicates that you a leasing the product, not buying it. However all the purchase buttons that are not in the fine print say, "Buy Now!" because if they said, "Lease Now?" people would expect the price to be substantially less than a copy they actually own.

poiboy May 26, 2016 um 9:14 pm

so is there a legal snag to grab onto with that working. if my amazon button says buy now, does that not clearly imply i will own the product (be it physical or electronic). when you rent a movie from apple.. it clearly says "rent" (with an option as well to "buy").
and with the prices of ebooks sometimes at par or more than physical books.. many DO feel they have a right to own it and not lease it.

poiboy May 26, 2016 um 9:15 pm

*wording, not working.

Fjtorres May 26, 2016 um 9:47 pm

Ebook retailers generally specify that what you buy is the license to download (repeatedly) and read.
One difference between print books and ebooks is that if the ebok is lost or damaged you can download it again whereas if apbook gets lost or damaged you’re s.o.o.l.

It’s not as simple as saying the ebook is less than the print book.
The ebook license brings benefits the print sale doesn’t.

Not really the same thing.

Chris Meadows May 27, 2016 um 6:03 am

Yep. I covered an interesting study on this the other day. Many consumers believe they have more rights in digital media than they actually have, would be willing to pay more for purchases that did grant them those rights, and will turn to no-cost or illegal means of acquiring the media if they can’t get them.

The study concluded that digital media stores posting a notice clearly enumerating the rights consumers do and don’t have would lead to a lot fewer misunderstandings. The problem is, digital media stores seem to prefer customers to keep the misunderstandings, because misunderstanding customers buy more digital media.

Smoley May 26, 2016 um 10:29 pm

What if the e-book license allowed you to resell, but not after 30 days?

That’s the overlooked difference between a resold e-book and the digital product that you can buy from the publisher on release day. If you want the book from your favorite author you’ll likely buy it on Zero Day rather than wait a month to save $5-$10. Similar to movies showing up for sale on BR/DVD to the general public 4 months after the release date at the cinema.

Peter May 27, 2016 um 3:48 am

"Is there a single argument which doesn’t boil down to someone objecting because they’re going to take a hit in the pocketbook?"

Is there ever?

TheSFReader May 27, 2016 um 5:19 am

As Fjrorres states, "he ebook license brings benefits the print sale doesn’t". As a quasi-exclusively electronic books reader, paper books have quasi negligible value to me, whereas I’ll happily pay for ebooks "licenses". Nonetheless, I think ebooks costing more than the lesser priced new paper version is a heresy.

As for used, I think if I buy a license and the license is non transferable, that’s all right with me, I got the ease of transfer/reading all right with the e-version.

Frank May 27, 2016 um 9:18 am

A reader buys an e-book from Amazon for $10. After reading, he sells it to a new person for $8. After a couple more transactions the used e-book is going for $1. But the reading experience is the same as the first time. However, for a paper book the material degradation ensures the book will not be resold forever but e-book experience is always the same.

For reselling of e-books to be allowed, there could be a floor for the resell price, such as in the example above charge at least $8 for the first year of reselling, then $6 after that and there would need to be a limit on the number of resales, so that the resale market doesn’t drop down to $1.

These sort of rights would have to be worked out in advance.

Fjtorres May 27, 2016 um 10:40 am

The BPHs would love that scheme because it would justify a $20 new ebook price. It would also force Indies to raise prices to fit into the resale scheme and probably end all ebook discounting.
eBook reselling provides a benefit to few while hurting a whole lot more ebook buyers. Most people don’t resell books. Period. And there is still a glut from libraries and charities.

HouseNegroesBeDamned April 2, 2020 um 9:58 pm

Hard to call the reselling of digital media. Price it at $3 instead of $10 and we’re in business.
Price it at $20 and no binding DRM and we’re in business (it is presumed three people or more will read it after the original purchaser, or predict your own number – the book needs to be digitally-watermarked for this to work just for tracking purposes, not enforcement).

That said, if some contractor claims I’m "buying" the item, then I am the owner, or they’re lying. A contract is a contract, if the item is described as being owned, then that means outright in my understanding – I walk away, can call the contractor an asshole, his mother a whore – and still keep my item because I OWN the item, I BOUGHT it, not leased it.
That is what freedom is. I wouldn’t say that – but the right to BUY something and cut ties is fundamental.
The person who fell foul of Amazon’s hidden "return things too many times and we ban you from Prime" rule, certainly felt like he did – and that was without trying. He lost his whole Prime library of content, right?
So the balance of power matters.
Slavery is what the DRM-infected systems that people are currently allowing to infiltrate are promoting. Slavery.

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