Coming to a Rational First Sale Doctrine for Digital Works

In reference to this Gizmodo piece analyzing the rights granted by the Kindle and Sony e-reader:

http://gizmodo.com/369235/amazon-kindle-and-sony-reader-locked-up-why-your-books-are-no-longer-yours

I think the analysis in that article is flawed. It doesn’t make any sense to be able to resell the reader with the books on it, because the license for the books is assigned to you, not to the reader. For example, if your Kindle breaks, you can move your books to another one. I’ve never heard anything other than the opinion that you can’t resell the digital copy - the assumption has always been that these sorts of transactions break the first sale doctrine. The problem then becomes “what are you buying?”, if there’s nothing you can resell.

The first sale doctrine has to apply to the license, not the bits themselves, because under the scenario in which it applies to the bits, arguably Amazon retains no rights whatsoever. They had no direct hand in arranging the bits of your copy the way they are - they merely sent instructions to your computer about how to arrange them in a certain pattern. The article asserts that you can’t “transfer” the bits, but in the same way, in downloading a copy, Amazon hasn’t actually “transferred” anything to you, either.

There’s no reason you shouldn’t be able to sell your Kindle, and the books don’t necessarily go with it, but if you want to sell the books separately, you can do that too. Legally, if you do that, you’d be obligated to destroy all of the copies you’ve made. Amazon’s inability to police that is as relevant as their inability to police the fact that you haven’t made a photocopy of the physical book you sold when you were done with it. There’s no weight to the argument that this will encourage rampant piracy, given that unencrypted cracked copies of all of these things are available to those who want them anyway, and always will be. People comply with reasonable laws willingly because they’re honest, it’s the “right thing to do”, and they feel that the laws are an acceptable tradeoff for living in a civilized society where sometimes you have to make compromises and not just do whatever you want. People do not comply with one-sided laws where they feel like they’re being ripped off for no reason. A law which turns your sale into a non-sellable license is of the latter kind. It turns normal users into petty criminals who don’t care when they break the law, because the law is stupid. Once they’ve ignored some of the terms, it’s a shorter step to ignore others, or ignore similar terms for other products. People like consistency, especially in legal treatments. I would argue that it’s in Amazon’s interest (and the others) to not niggle on this point, because a reasonable license with terms that look like a sale makes for happier customers who aren’t interested in trodding on the license terms, and that’s better for everyone.

(Yes, I’m arguing that restrictive license “sales” are anti-civilization.)

The Kindle ToS not only prohibits selling the Kindle with your books on it, it prohibits anyone else from even looking at it. If someone reads over your shoulder on the train, you’re in violation.

This is, of course, ridiculous.

The right legal response here seems to me to be to not dicker about with splitting hairs about whether you can sell your digital copies if they’re on a physical device and you can’t if they’re not, but to declare that anything sufficiently close to a “right to view, use, and display […] an unlimited number of times” de facto consitutes a sale, and with it comes certain buyer’s rights regardless of what kinds of outrageous restrictions the licensor tries to bundle in the ToS. The fact that this also seems to be the right business response reinforces my belief that this is the correct path. This kind of a transaction is different from renting, which is by nature a temporary one.

It is the right thing for society to declare that if you’ve bought something that isn’t time or use limited, you’ve therefore also bought the right to resell it, whether it’s a physical object or a license.

Previously:

http://www.aquick.org/blog/2006/04/30/sony-cant-make-up-its-mind-if-music-is-sold-or-licensed/

http://www.aquick.org/blog/2004/12/30/cory-rants-on-drm-and-rightly-so/

Tags: sony, amazon, kindle, gizmodo, first sale doctrine, digital work, content, licensing, purchase, sale

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This entry was posted on Monday, April 28th, 2008 at 7:12 am and is filed under Cheat Codes News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.