Free The eBooks! New petition calls for supporting consumer ownership of ebooks…I think

Yesterday, I saw a link to a new petition on the U.S. government’s website to allow the “unlocking” of ebooks and reaffirmation of ownership rights by consumers for these digital goods. This comes on the heels of the Obama administration coming out strongly in favor of fully legalizing the jailbreaking or unlocking of cell phones. I agree with both sentiments, but the new petition has some issues. Here is the text: 

Protect Readers’ Rights by Unlocking Ebooks

The White House recently came out in favor of allowing consumers to unlock their own cellular telephones. We are asking the White House to apply the same laws and provisions to ebooks.

The purchase of a book, whether online or not, is a purchase, not a license. Digital books should be legal to read on any device that supports standard text files. Legally purchased digital books should not self-destruct, expire or disapper, except under conditions of damage or obsalescence. Within reasonable limits, book purchasers have the right to lend or give books to friends, charitable organizations and libraries. Finally, libraries should be permitted to lend ebooks under the same rules as physical books.

We ask the Obama Administration to champion the rights of readers to own their ebooks.

So, typos notwithstanding, let’s discuss. And by the way, if you’re going to post a petition concerning important issues like literature and consumer rights, you really should spellcheck the damn thing, otherwise your credibility could “disapper.”

For starters, the White House didn’t apply any laws or provisions regarding unlocked cell phones, they only expressed support for the notion going forward. The relevant laws concerning this, specifically in the DMCA, clearly ban the activity. Their opinion on this is all it is, just an opinion. For cell phone unlocking to actually be legal, it’ll take a legislative fix. Good luck with that. Not to mention, they stopped short of showing support for similar unlocking of ereaders and video game consoles, etc (they did mention tablets but only in the limited sense that they were becoming more like smart phones which dedicated ereaders are definitely not). A logical view would follow that if jailbreaking phones is okay, then doing so with all devices should be as well. But the White House doesn’t stretch that far, with their stated position directed at preventing lock-in by telecomm service providers and has nothing at all to do with content providers. In fact, the White House specifically called for “narrow legislative fixes in the telecommunications space.” That’s a far cry from rallying around customer rights for content they purchase. It’s certainly a step in the right direction, but there is no law or provision in this that’s even applicable to content rights for consumers.

I completely agree with the statement that buying an ebook is a purchase not a license, but that’s far from a popular position to hold. Over the past couple months, in arguing in favor of resale rights to digital goods, I found myself in many places arguing just that point of view. Content providers, including many independent writers, are clinging to the license scheme, and with some solid justification. There have been a few conflicting court decisions, but it’s far from decided that the sale referred to here is, legally speaking, actually a sale. I believe it is, and I think the licensing regime we’ve got going on here is potentionally the greatest threat to consumer rights in any of our lifetimes, but I’m definitely on the minority side of that point of view. It’s going to take a favorable SCOTUS ruling to affirm such rights, as a legislative fix simply isn’t happening in this atmosphere, and I wouldn’t hold my breath for it, even if I absolutely believe it’s what needs to happen to retain balance between producers and consumers in the stream of commerce.

I’m somewhat confused by the statement that says digital books should be legal to read on devices that support standard text files. Ebooks aren’t standard text files and, as formats improve (epub3, html5, etc) they’re even less comparable to simple text. Unless the petitioner is advocating for stripping off the bells and whistles to bare bones text, I don’t understand the point of this statement. Seems naive and, much like the recent lawsuit from bookstores against Amazon and the Big 6 calling for “open-source DRM,” whatever the hell that is, it comes off as very tech-ignorant.

As for libraries being able to loan ebooks under the same rules as print, I have two questions. One, ebooks aren’t print so why would you want to limit libraries to a physical standard that doesn’t necessarily apply? Secondly, and most importantly, the petition plays fast and loose with the first sale provision of copyright law. The ability of libraries to lend physical books as they have comes from first sale. The petitioner’s opening statement that an ebook buy is a purchase not a license supports a first sale position, but it also seems to go out of its way to avoid even mentioning consumer’s rights under the same provision, notably resale. Is the suggestion here that libraries should be granted a waiver to exploit first sale rights customers shouldn’t have, even though it opens with a strong statement supporting a first sale argument? I don’t get it. If the point here is to free ebooks from lockdown control of content providers, why skip the most important tool to achieve that, a true ownership stake in the ebook for the purchaser?

What I see as the big flaw in the argument here is the warping of the concept of first sale rights. Libraries can have them, apparently, the license scheme used to block them is dismissed, yet for some reason, consumers should still be left wanting for their full rights under copyright law? Why? And what, exactly, are reasonable limits to purchasers lending ebooks? Why should libraries get more rights to lend books than consumers? How is it that I can give away or donate said ebook, a library can then use first sale to lend it, but I can’t use the exact same provision of copyright to resell it? I thought this was about freeing ebooks for consumers, but it seems more like exempting libraries than truly benefitting paying readers.

The petition ends with a call for the Obama administration to champion the rights of readers to own their ebooks. I agree, but that’s not what they’re calling for here. This petition still ignores first sale rights for consumers while championing them for libraries and even accepting restrictions on consumers to lend or give away said ebooks. This isn’t ownership at all, but simply a desire to read a Kindle ebook on a Nook or similar type of arrangement. If all you really want is to prevent content provider lock-in to specific devices, then say that. Don’t muddle the issue with notions of first sale or ownership that you’re not even advocating. The wording of the petition also allows for ebooks to be deleted or removed due to obsolescence (misspelled obsalescence, which is a fascinating freudian slip, as license schemes are already limiting the very idea of what constitutes a sale).

I think this is a nice thought, preventing vendor lock-in has some definite merits, but ultimately this petition is poorly executed and unnecessarily convoluted. And again, spellcheck, dammit!

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Libraries, eBooks and the First Sale Doctrine

In case you haven’t heard, Random House announced last week that it was raising prices on the ebooks they make available to libraries. They didn’t just bump the prices a bit, however. They tripled them across the board. Now, don’t get me wrong, I understand publishers, particularly of the Big 6 legacy variety, are lurching toward total annihilation having problems. But this is simply an unconscionable act in my mind.

Libraries are an important public service. They do more to promote literacy than every publisher in this country combined. To soak them so unrepentently, and try to leech a large portion of their limited budgets in this fashion, quite frankly, disgusts me. Read the article I linked to above. Random House spokesperson Stuart Applebaum actually sounds as though libraries should be thanking them for these usury-level price hikes. After all, they’re still selling to libraries in a relatively unrestricted manner, unlike any of the other Big 6 gang of thugs publishers. He also makes a threat in the guise of a polite suggestion that prices could change yet again if libraries don’t share patron borrowing data with publishers. So not only are they extorting crucial monies from hard-hit library budgets, they also want those same libraries to perform and turn over what amounts to unpaid market research they hope to profit from. It just makes me feel all warm and fuzzy inside with the level of altruism coming from Random House on this.

Realistically, publishers are a business and are behaving thusly, albeit in my mind, in a short sighted and profiteering manner. Nothing requires them to make their products available to libraries. Well, except for that pesky little thing called the first sale doctrine that allows libraries to buy print books, often from wholesalers, then do whatever the hell they want with them. But the first sale doctrine doesn’t apply to digital works, which is why some publishers can withhold their works altogether, severely restrict the ways in which libraries can use them even after paying up, or charge prices 10 times or more what those files are actually worth. And don’t give me the argument that they’re worth more because of the agency model. The Justice Department is about to come down hard and nasty on that little slice of illegal collusion. What Random House is doing here is price gouging what they perceive as a captive audience, plain and simple.

A while ago, I wrote a bit about how I believe we need to develop an aftermarket for digital wares. Part of my reasoning is that the loss of the first sale doctrine is a serious loss of value on the consumer side. Without the possibility of resale or full freedom of use, digital goods should be significantly cheaper than their physical counterparts simply because consumers are getting a product of significantly lesser value than they were. And that says nothing about the fact that reproduction and distribution costs linger in the neighborhood of zero, another quite fine justification for much cheaper prices. A legit aftermarket and a reinstitution of the first sale doctrine would benefit everyone in the long run, from authors to publishers (although don’t expect them to realize this) to readers, and especially libraries. What it doesn’t benefit are publishers like Random House who want to severely overcharge libraries just because they can.

In order for an aftermarket to happen, we need some manner of reining in the potential for unlimited copying on the consumer end. I don’t think that’s an insurmountable technical obstacle, some current DRM already does that. It can be done. The only problem is that big media doesn’t want it to happen. They’re perfectly content to try and reap the whirlwind restablish a monopolistic control over distribution through the various perversions of copyright law they’ve pushed through over the years. And make no mistake, if they could get rid of the first sale doctrine on physical goods, they’d do it in a heartbeat.

Meanwhile, we all suffer for their obsolete delusions. Access to books is cut off or seriously limited by playing hardball with libraries, agency pricing adds 50% or more to the cost of ebooks to consumers, authors suffer from decreased exposure, and the industry on the whole is hampered at a time when a new golden age of reading could possibly be dawning by powerful legacy businesses too short-sighted to get out of their own way.

If I were a cynical man, I’d say publishers’ poor treatment of libraries on ebooks is simply another tool they’re using to prop up their fading print business and slow the adoption of ebooks. Wait, I am cynical, and I’m pretty sure that’s exactly what’s ultimately behind this. But, for now, libraries really have no choice. They’re going to have to have ebooks available in some fashion sooner than later. For my money, however, barring some kind of miracle lessening of copyright law, I’d like to see them tell Random House exactly what they can do with their price hikes. After all, I’m pretty sure there’s a large and growing contingent of independent publishers who would be thrilled to have access to the library system for their works. Hell, they might even be so happy, they won’t charge for their books at all. That certainly would be something to think about. And to me, it seems much more reasonable than paying $100+ for a limited digital copy of a book that should cost $5 or $10, at the most.

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