Used e-Books: Wave of the Future, or Legalized Piracy?

In 2012, on this blog, I examined the phenomenon of online e-book piracy in a five-part series.  In that series, I attempted to examine the reasons behind piracy, the impact that piracy could have on the publishing industry over time, and even tossed some ideas around about the way the industry might eventually change to make piracy less attractive to consumers.  That series can be found at the links below, and I think it’s a really good read for those who want to get educated on at least some of the issues surrounding this controversial topic.

Part 1

Part 2

Part 3

Part 4

Part 5

It’s nearly three years later, and the industry is ever-evolving.  Independently published (a.k.a. self-published) books are more common than ever.  E-books are beginning to outpace printed books.  The Amazon Lending Library has been developed and led to other e-book lending programs.  Subscription services for e-Books that operate similarly to Netflix have begun to spring up.

But there’s one article that caught my eye recently and made me want to visit the issue, and that is the possibility of the selling of used e-books.

There has always been a used book market.  In fact, there have been stores that have specialized in the selling of second-hand books.  I know when I was in college, one would actively seek out used textbooks (as long as the newest editions was not required).  They were cheaper – one expected that the books would have some wear and tear but was willing to accept that for the lower price.

It is now reported that a group is working with “one of the world’s largest booksellers” in order to start up a used e-book marketplace.  Presumably, this would be a place for sellers to load their digital books for resale once they are done with them.

So that brings us to the big question – would such a marketplace even be legal?  The legal question involves the “first-sale doctrine” which prevents copyright holders from stopping the sale, trade, or lending of legally acquired property.  This is what makes things like used bookstores and Gamestop’s used video game market possible.  It also is what legally allows an owner of a DVD to let their neighbor borrow it.

There are a couple of key premises that make the “first-sale doctrine” work.  First, it was established in the early 20^th century, at a time when the concern was the resale and lending of a physical good.  Physical goods, including books, sound recordings, and film, deteriorate over time.  Thus it is a given that the thing being resold or lent had lost some of its quality, thus some of its value.  This is a new time, and digital media has no such “shelf life”.  The file is the same quality whether it is the initial sale or it has changed hands dozens or even hundreds of times.

The second premise, and perhaps the hardest to enforce, is that upon resale or lending the product actually changes hands.  This means that the item should become unusable to the seller or lender.  (Actually, this is how Amazon lending works on the Kindle – when one user lends a book to another, it becomes unreadable by the lender until the borrower “returns” it.)  This is where things can get sketchy.  For example, one e-book resale site can only operate “on the honor” of the lenders, that they no longer have a copy of the e-book.

However, there’s a flaw in the system that could hurt the bookstore’s defense. One of the key provisions of the UsedSoft ruling was that, in order for the transaction to be legal, the seller must “make the copy downloaded onto his own computer unusable at the time of resale.” 

Tom Kabinet has no way of ensuring that this has happened, so it is easily possible for someone to both keep and sell the ebooks they’ve bought. The company can only run an honor system, asking people to confirm that they purchased the ebook legally and that they have deleted their own copy. - David Meyer, from an article on Gigaom.com

This is where the distinction MUST be made between transference of a product, and creating another copy of the product, because if this distinction is not made and enforceable, then what could result is a form of legalized piracy.  Think about it … as a consumer I might choose to buy a $0.99 used e-book instead of a $2.99 “new” version off of Amazon.  This might be alright if it is only the one copy that the seller owned that is being sold.  But what if that person is just putting up endless copies of the e-book while they retain a copy for themselves, and selling each one at $0.99 where only they (and perhaps the marketplace) see that money?

Personally, I am keeping an open mind about this to see how things turn out, but authors should be vigilant about these potential changes to the marketplace.

Authors, what are your thoughts on this potential used e-book effort?  And readers, how would you feel about a used e-book marketplace, or do you think the momentum is headed more towards subscription services?

Sources:

Digital Reader, “Secondhand Downloads: Are Used e-BooksComing?”

Bloomberg, “Secondhand Downloads: Will Used E-Books and Digital Games Be for Sale?”

GigaOm.com, “The right to resell ebooks — major case looms in the Netherlands”