

Dutch court: selling e-books second hand is legal - bartkappenburg
https://translate.google.com/translate?sl=nl&tl=en&js=y&prev=_t&hl=nl&ie=UTF-8&u=http%3A%2F%2Fnos.nl%2Fartikel%2F677640-verkoop-tweedehands-eboek-mag.html&edit-text=

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skywhopper
This is encouraging news. A huge blow to fair use and access to media is being
struck as we move to electronic formats for music, movies, and books.
Libraries, rental services, used bookstores, and more depend on this concept
to allow greater and fairer access to media. How we transition this concept
into the world of digital media will greatly effect the extent to which we can
fulfill the promise of computers and the Internet to make life better.

The First Sale Doctrine may be difficult to apply in a world of digital media,
but it is not more difficult to apply than Copyright itself. Establishing a
legal right to resell digital goods is a necessary counterbalance to the
evergrowing power of Copyright owners over how we use our computers.

~~~
tomphoolery
"Why the fuck do you get to resell something that I made? It's mine, I should
get the money for it. Why do you get the money for it? Fuck you, I want my
money!" is pretty much how I feel when I hear about people re-selling digital
goods. It doesn't make any sense to me. Please explain how the original
content creator profits off of this, if he/she doesn't then I believe this
ruling is not only immoral, it's also completely stupid.

~~~
teddyh
If you could clarify why your argument applies to digital media but not
physical media, it would help.

Or, alternately, do you believe that resale of a thing you made should benefit
only you? Is that in perpetuity, or how long should this last?

~~~
baddox
I'm not a fan of the way that argument was phrased, but the obvious difference
is the physical difference between how a physical object is "stolen" and how a
digital work is "stolen." It just comes down to property rights, which are
subjective and change over time. Under my own subjective impression of
property rights, someone breaking into my house and taking a sculpture I made
is a violation of my rights, but if I sell a CD to someone and they give away
a copy of it, I don't feel like there was a violation.

~~~
alexqgb
When it comes to unauthorized copies that do not fall within the parameters of
fair use, the theft - for lack of a better word - is not of the copy in
question. The bone of contention is actually the money that you _would_ have
paid to the author in the case of a legal transaction, and which you "save" in
the case of an illegal duplication.

It's kind of like "saving" money on milk by walking out of the store without
paying for it. Whether you're taking possession of a finite physical good, or
increasing the legally regulated supply an intangible one, you're doing
something that - by law - triggers an obligation to pay another person money.

Disregarding the obligation by making a copy and retaining possession of the
money which, by right, you now owe another, is where specific and definable
deprivation enters the picture.

When people who understand what they're talking about refer to "theft" in
relation to the unauthorized duplication of intangible goods, this is what
they mean.

~~~
baddox
> The bone of contention is actually the money that you would have paid to the
> author in the case of a legal transaction, and which you "save" in the case
> of an illegal duplication.

The problem with that analysis is that the amount of money you _didn 't_ give
to the artist is the same regardless of whether you downloaded a copy. In
fact, the vast majority of people in the world _didn 't_ pay the creator of
the media.

And even for physical items, compensation to the initial holder is not what's
relevant. If you take a gallon of milk and sneak out of the grocery store, but
leave enough cash on the shelf in its stead, I think you will still be found
of shoplifting, and I personally agree with that assessment. Likewise, if
someone breaks into my house and takes my sculpture and leaves a million
dollars of cash, that's still theft. What constitutes theft of a physical
object is precisely that the item was taken _not on the terms_ of the property
holder.

~~~
alexqgb
"The problem with that analysis is that the amount of money you didn't give to
the artist is the same regardless of whether you downloaded a copy."

And yet, demand for that media was nevertheless satisfied. So all the costs in
creating it were invested with no hope of return. That may have been stupid
move on the part of the author, but if the money dries up, how long do you
think these people are going to go on investing their own time and resources
for free?

"What constitutes theft of a physical object is precisely that the item was
taken not on the terms of the property holder."

Exactly. And the same goes for intangible property. Indeed, that's the whole
point of IP law: to create a situation where it's impossible to avoid a formal
negotiation with the property holder without breaking the law.

~~~
baddox
> And yet, demand for that media was nevertheless satisfied.

A quantity of one was satisfied at a price of zero. That's a pretty trivial
spot on the demand curve. It tells you nothing about the demand for that same
good at nonzero prices.

~~~
alexqgb
What's the name of the rhetorical tactic where you avoid an argument instead
of addressing it by reframing the terms to create an obviously absurd and / or
non-representative case?

There's a word for it, and it does _not_ reflect well on the intellectual
integrity of the people who use it. That's fair warning.

Back to the topic: I was speaking in generalities, but if I were to get as
specific as you just did (by assigning a specific quantity of one), I wouldn't
draw any sweeping conclusions before doing the intellectually honest thing by
asking what happens when the quantity = n?

If, say, n = 1,000,000, then the effect is not so trivial. Moreover, the
producer typically cares about the price point at which the number of sales
and the value of each sale combine to produce the greatest possible revenue.
While this point is not only non-obvious, it is likely to vary over time. So
setting the price can be tricky. But one thing you can be sure of is that it's
_not_ zero. Moreover, all demand satisfied at the zero point is removed from
the pool in which the ideal price / volume relation can be found, given that
volume is a function of demand.

In other words, the optimal price in a leaky will pool will invariably be
lower than one in a pool that doesn't leak. And that's how demand destruction
lowers the commercial potential of a property with near-zero marginal cost.

~~~
baddox
Actually, the quantity could be one or it could be a trillion. When the price
is zero, the demand schedule is pretty meaningless. I just used one as the
quantity in my example because I was assuming that a single person would only
download a single copy of a given good.

I _didn 't_ say that the effect of zero-price downloads is trivial. I said
that you cannot conclude anything about the quantity of a good that would be
demanded at, say $10, by observing that there is some quantity demanded at a
price of zero. This was a direct response to your sentence "And yet, demand
for that media was nevertheless satisfied."

> Moreover, the producer typically cares about the price point at which the
> number of sales and the value of each sale combine to produce the greatest
> possible revenue.

Greatest profit, actually, but you're pretty close. But I don't see your
point. I'm not suggesting that all media creators should price their content
at zero (although that certainly is a valid strategy that can and has worked).

> Moreover, all demand satisfied at the zero point is removed from the pool in
> which the ideal price / volume relation can be found, given that volume is a
> function of demand.

Not exactly. I have purchased media legally after having downloaded the very
same media illegally, and it wasn't because I lost my downloaded copy. But
anyway, this claim still ignores my point, which is that the fact that there
is nonzero quantity demanded at zero price tells you very little about how
much is being removed from the pool at non-zero prices. To use an obvious
example, a person with zero disposable income can download an album for free
despite it being impossible for him to purchase it at any non-zero price. Or
to use another obvious example, I can download music at least 50 times faster
than I can listen to it, and certainly faster than I could afford to pay for
it. If I were to download a terabyte of music this week, that tells you
essentially nothing about how much music I would be capable or willing to buy
legally if I were unable to pirate music.

~~~
alexqgb
"this claim still ignores my point, which is that the fact that there is
nonzero quantity demanded at zero price tells you very little about how much
is being removed from the pool at non-zero prices"

But again, that's not _the_ point. Indeed, asking about the amount of dilution
assumes the dilution is taking place, and moreover, when it comes to artists
and/or formats with established track records, demand prediction isn't a game
of wild guesses. The ability to estimate, if not predict, demand is essential
to the budgeting and capitalization of programs. So if you're aware that
dilution is taking place at scale, you can approximate what you would have
taken in w/o having to deal with the skim.

------
Joeri
Not quite what the article says. The judge has punted the question to the EU
level, and denied granting an injunction prohibiting the resale. It's still
perfectly possible that the court will rule the site in question is not
operating legally.

~~~
SEMW
True, but there's a good reason to think the CJEU will give the right answer:
Oracle v Usedsoft[1] was only a couple of years ago, which upheld that first
sale doctrine for software (i.e. that even a supposedly non-transferable
software licence still counted as a sale for the purposes of that doctrine).

I think that ruling was under the software directive rather than the IS
directive, but the logic seems like it'd apply just as well to ebooks (and I
doubt the two directives differ much on first sale, though I haven't checked),
so I'd be surprised if we don't get a similar result here. IANAL, though.

[1]
[http://curia.europa.eu/juris/document/document.jsf?docid=124...](http://curia.europa.eu/juris/document/document.jsf?docid=124564&doclang=EN)
, summary at
[http://www.linklaters.com/Publications/Publication1403Newsle...](http://www.linklaters.com/Publications/Publication1403Newsletter/TMT-
News-November-2012/Pages/EU-Used-Soft-Oracle-ECJ-approves-sale-used-
software.aspx) , HN discussion at
[https://news.ycombinator.com/item?id=4193413](https://news.ycombinator.com/item?id=4193413)

~~~
grabeh
IS directive specifically references tangible goods as opposed to the Software
directive which makes no distinction. At least in this respect it looks like
first sale may be limited to software for the time being at least on the basis
of post-Usedsoft case law, but we shall see!

[http://www.osborneclarke.com/connected-
insights/publications...](http://www.osborneclarke.com/connected-
insights/publications/e-commerce-law-and-policy-article-re-sale-rights-
digital-content/)

------
zorbo
Meanwhile we're stuck with price-fixing on books (by law) in the Netherlands
which, IMHO, is a much much larger problem than the legality of reselling of
e-books. And although that law doesn't apply to e-books, retailers so far
haven't deviated from that norm, probably because it let's them line their
pockets too. For any other industry such price-fixing would be considered
illegal, but for some reason the publishing and media industries have been
exempt.

------
jiggy2011
The article seems to be down for me. But I'm curious if there would be any
mechanism in place to limit used sales in any way since electronic copies do
not suffer from the same problems of wear and tear etc that a physical book
would.

If I can buy a used copy of a digital book cheaper then there is really no
reason ever to buy a new copy.

Hell , if the market is convenient and has enough liquidity then what's to
stop me from buying a book, reading a chapter and then selling it and buying
the same book back again at a reduced price when I want to read the second
chapter?

I could see this might cause the price for ebooks to crash towards 0 unless
there is something in place to rate limit purchases/sales.

------
bellerocky
Steam lets you trade and sell digital goods that you bought from steam. For
reselling of digital goods I think you either need a centralized system that
that is the trusted arbitrator of who owns what and is involved in all
transactions your use a distributed system like bitcoin where a p2p network
creates a consensus on who owns what.

So I think this can be done. You can't stop the seller from continuing to
consume the content after they sell it, but at least they wont be able to sell
it again. Nice clients might make it so that you have to prove that you own
something through the system, without even needing DRM, but of course this is
mostly an honor system.

~~~
tokenizerrr
> Steam lets you trade and sell digital goods that you bought from steam

Do they? Only if you haven't claimed the game, I believe. You cannot sell (or
trade) games that you have in your library.

~~~
Natsu
Yes, there are significant restrictions and you can't take a game out of your
library and gift it, for example. I believe there may be other restrictions
on, for example, having people trade when one person is in a low price region
and gifting to someone higher, but I'm not very familiar with the details.

~~~
concerned_user
These are not restrictions. At this point you DO NOT own a game yet, it is
still packaged like an unopened box wrapped in plastic wrap. It is essentially
the same as if you buy a new phone or dvd and without doing anything to the
box simply resell it to a different person.

Toying with gifts the way you mention may get you banned, there are certain
restrictions as well which may result in you not being able to launch a game
since you are not in the specified region (ip check) and vpn/proxy use is
against ToS so it is a gray area, you keep doing it and you get banned
eventually.

When it comes to TF2 items each player has a choice whether he invests time or
money to get the resources to craft items, i'm not an expert on this but since
resources are made literally out of thin air there is mostly supply/demand.

~~~
Natsu
> At this point you DO NOT own a game yet

You can claim it's a voucher instead of a game, but the distinction is quite
meaningless to me. I can see why they do this for business reasons, but it's
not something we tolerate elsewhere, generally. And why is it not a
restriction if I am forbidden from doing something?

We can redefine all the words if you want, but the essential facts that I've
paid them money for something and they forbid me from doing certain things
with the item I purchased remain.

------
seanflyon
I am going to submit a minority opinion here and say that I think publishers
should be allowed to sell you a non-transferable license to access a e-book.
If Disneyland wants to sell you a non-transferable season pass, I see nothing
wrong with that. I'm not proposing that we take away your right to resell, I'm
arguing that we allow you to buy something less valuable. A non-transferable
license is worth less than a transferable license, and if it does not cost
less you should not but it, but that is a pricing issue.

~~~
r00fus
As long as they are forced to sell you a transferrable version, I'd say that's
ok.

The danger is the case when only non-transferrable licenses exist for all
media due to industry collusion.

~~~
seanflyon
Forcing them to sell you a transferable version seems reasonable, but I still
disagree. First, forcing them to sell you something is meaningless unless you
force them to sell it to you at a reasonable price, so you plan requires price
fixing. Second, collusion is already illegal. Finally, I don't see the danger.
This is already quickly becoming the case for video games and has been great
for the industry, both developer and consumer.

~~~
r00fus
> Second, collusion is already illegal.

How do you explain region codes and industry-wide DRM? (esp. for videos - non
DRM'd digital video is almost nonexistent).

~~~
seanflyon
Different companies can use the same format without colluding. Are you
suggesting that in a competitive environment content companies could not
afford to anger their customer buy using DRM? These companies believe that
they would lose more sales by not having DRM than by having it. Look at GoG vs
Steam. GoG gets some bonus points for not having DRM, but having DRM doesn't
seem to costing Steam too many sales.

------
acd
I pay tax on hard disks to be able to private copy music and videos yet they
are protected by DRM so its not possible to copy music to your friends, this
should also be challenged. Either there are DRM and no copy tax or there are
no DRM and you are allowed to copy. Same goes for HDMI.

------
ThomPete
This is where a crypto-protocol could come in use. Basically allowing people
to buy books and resell with guarantee it's the original. This might even
allow the books to be sold more expensive.

