Romance, Historical, Contemporary, Paranormal, Young Adult, Book reviews, industry news, and commentary from a reader's point of view

Reselling Virtual Property

Built into the Copyright Act of 1976, the Copyright Act, is the right of First Sale.  First Sale powers eBay, Craigslist, used bookstores and garage/flea market sales all over the country.  Essentially the right of First Sale says that if you bought something, you can do what you want with that item, even resell it!!! and not pay the original creator another dime.

Obviously copyright holders are no fans of First Sale doctrine which is why ebooks and digital music should be such a crowd pleaser amongst those who earn their living based on first sales of their items.  There is no way, really, for a purchaser of ebooks or digital music to legitimately resell their purchases.  This is one argument readers make in pushing for lower prices.
Bopaboo is a new entry into the digital social club market which seeks to carve out a place within the First Sale doctrine for digital purchasers.  Is it lawful?  Time and lawsuits will tell us. 

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

9 Comments

  1. Courtney Milan
    Dec 23, 2008 @ 11:03:39

    You know, I’ve always thought that if you downloaded your e-book directly to a transportable device, e.g. a USB thumb drive, you could then sell the book and the drive directly.

    The reason e-books aren’t easily resellable is that the only way to sell it involves making a copy and then deleting it, and that act of copying is essentially unlicensed. But if you aren’t making a copy (except temporary resident memory copies to read it, which must be allowed) I don’t see why you couldn’t resell.

    (Incidentally I know most e-books come with a disclaimer at the front saying it cannot be resold–but I dismiss this as totally ineffective. It’s unambiguously a sale, and not a license; the e-book sellers have every opportunity to get you to agree to a click-through license and at least the ones I’ve seen have never done so, and so post-sale conditions like that are worth, in my mind, a pat on the head and a “nice try.”)

    Of course, this is just pure theoretical geekery because who would want to resell a $3.50 e-book using a $10 thumb drive?

    Still.

  2. Jane
    Dec 23, 2008 @ 11:07:35

    Theoretically I agree with you. The problem would be in the enforcement. I.e., why not download the entire BlackDaggerBrotherhood onto a USB drive. Sell it for a discount.

  3. Courtney Milan
    Dec 23, 2008 @ 11:21:27

    You’re right–you could download entire libraries onto a USB drive and sell them, and actually make up the USB drive difference that way. I didn’t think about that.

    Assuming you can get the BDB in non-DRM format (I don’t know either way), I’m not sure what you mean by enforcement problems. So someone resells a book that they bought for a discount? That’s a used book. Sucks for the author, but then, in a sense, so do used book stores and Amazon’s used program and friends that bum books off each other.

    I suppose the problem is that it’s difficult for the publisher to tell if it’s a legitimate resell or not, but I don’t think they could get you for copyright infringement.

  4. Jane
    Dec 23, 2008 @ 11:25:44

    @Courtney Milan The publisher’s problem is what I mean. How can they tell that the download to the USB is the only version/copy that was downloaded absent subpoenaing all the computers of that user and then doing a harddrive recovery, etc etc to ensure that there were no other copies kept by the consumer.

  5. Courtney Milan
    Dec 23, 2008 @ 11:42:41

    Yep. That is surely a tough situation–ideally if you wanted to set up business as a reseller of digital libraries you would set up as close to a sterile lab as you could–e.g. all downloads are to a computer without a harddrive and only USB ports, a camera monitors the lab at all time & keystrokes are captured. And then you’d bring an action for a declaratory judgment when they cancel your auction on eBay. :) So hypothetically I can see someone getting around the publisher.

    The reason why publishers can rest easy is that it’s just not a viable business model. End users won’t know if the copy is untainted, and they won’t be willing to pay actual $ for a potentially pirated copy that they have to wait a week to receive. Not to mention the huge costs incurred by setting up a sterile environment, paying shipping/USB drive costs on everything…. and the whole point is to resell books, so if you’re not extracting any value out of it yourself, you’re selling the whole thing at a loss with no benefit.

    In any event, the salient point of this exercise is that you can have something like a doctrine of first sale in e-publishing, but at the point where the reseller is not breaking any laws, you have a resell situation worse than the used book market: less convenient, more expensive.

    The only other point regarding first sale that matters is this–I wish there were some way to have a viable first sale doctrine in ebook-land–but first sale works in a sense in physical-book-land because it’s limited. Theoretically, a book could be sold a billion times. Practically, it will be sold once, maybe twice. It changes if you have a file-swapping-type resale, and I wish there were some way to set a digital resell to something between 0 and infinity.

  6. Sherry Thomas
    Dec 23, 2008 @ 17:24:45

    Hee, lawyers debating lawyers. I dig. It’s like Batman vs Superman. :-)

  7. GrowlyCub
    Dec 23, 2008 @ 17:59:22

    Theoretically, a book could be sold a billion times. Practically, it will be sold once, maybe twice.

    I don’t remember where I saw it, but I’m pretty sure the number ’9 on average’ for owners of a paper book came through not too long ago.

  8. LindaR
    Dec 23, 2008 @ 21:14:12

    I might be way off the mark here, but my understanding of the copyright “right of first sale” is in the field of songwriting.

    There, the right of first sale belongs to the songwriter. This keeps an established artist from hearing a fabulous new song at the Bluebird and running back to the studio to record the song.

    In other words, the songwriter has the right to control “first sale” — and record the song him/herself.

    But once it’s been recorded/published/”sold”, then anyone who wants to can cover the song.

    But I don’t know how that theory applies to books.

  9. Jane
    Dec 23, 2008 @ 21:21:16

    @LindaR: Nope, the right of first sale applies only to the sale of the individual authorized copy. You, as a songwriter, own the rights to the song. Any reproduction of the lyrics and music must be done with your permission. What a songwriter sells is generally the right to reproduce and distribute copies of their song (lyrics/music). Sampling, in fact, can’t be done without the permission of the original songwriter or lyricist.

    If you wholesale sell your lyrics/music to another person, that person has the right to resell those rights or produce copies however they want.

    The first sale doctrine allows the consumer to do what they want (but not copy it) including reselling it.

    @Courtney Milan: I’m thinking that there would have to be some royalty payment from the filesharing group akin to radios playing the music in order for some reasonable “Used” sale to take place for digital copies.

%d bloggers like this: