Used eBook Sales Now Illegal in Europe (For The Moment)
Used ebooks are a hot topic right now, with Apple and Amazon each pursuing a patent over reselling digital content and as a result sparking a debate on the legality, ethics, and morality of a second-hand marketplace for products that don’t decay.
This is a hot topic across the pond as well, only it has gone in a slightly different direction. A German court has ruled this week that ebooks cannot be resold.
That was fast, but if I were a publisher I would not be celebrating just yet. I don’t have access to the ruling, but just from reading between the lines of the original German coverage I can already see a couple problems with this case.
The lawsuit was filed by a German consumer advocacy group in the District Court of Bielefeld. According to Boersenblatt, a magazine that covers the German publishing industry (think Publisher’s Weekly), the judges ruled that ebooks were not software, so the ruling made last year that reselling software licenses was legal did not apply.
This is a rather curious decision, and I don’t think it’s going to pass muster.
First, I think that this decision is splitting legal hairs. A strong argument could be made that the same legal principle should apply to both software and ebooks. If you can legally resell software in Europe then you should be able to legally resell ebooks, or at least that is how it looks to me. (Read this comment for an explanation as to why this paragraph is crossed out.)
But more importantly, this decision isn’t the end of the issue because something tells me the plaintiff won’t let it die. This lawsuit was brought by VZBV, the same consumer advocacy group that is suing Valve to force the software vendor to enable customers to resell software. I covered this story a couple months back because of the obvious ebook angle.
I don’t think VZBV is going to rest until they either run out of money or the case goes before the European Court of Justice. That’s the highest court in Europe, and that was the court that ruled software resale was legal in Europe.
That case is known as the Usedsoft decision, and it took 5 years to be resolved. I would not expect the ebook issue to be resolved any time soon, but I am also expecting that the ECJ will eventually rule that Europeans can resell ebooks.
Right now the ebook rights issue in Europe is largely the same as it is in the US. It’s not exactly illegal to resell ebooks, but the seller does have to get the copyright holder’s permission first (more detail here).
But once ebook resale is legal in Europe, we’re going to see consumer advocacy groups pushing the issue. And when that happens it’s going to make for interesting times.
For example, what if the seller and buyer are in markets where different publishers have the right to sell the ebook? Arguably Amazon (and other ebooksellers) would have the obligation to respect the territorial rights, but under European law they might not have the legal right to do so.
Do you suppose Amazon might take away a legally purchased ebook because of geographic restrictions? I don’t know, but it’s not out of the question.
I’m also looking forward to the first time a Kindle owner in Europe sells an ebook to a Kindle owner in the US. The latter cannot sell a used ebook, but it’s not clear whether the US Kindle owner can buy a used ebook.