the first sale doctrine

OK. time to switch gears. The “first sale doctrine” is the legal principle that allows you to sell, loan or otherwise give away a book you bought to a customer, friend or family member. It’s what makes used bookstores possible. It also allows me to send my Dad that rare copy of Brian Aldiss’s Helliconia. But does “first sale” apply to e-books?

The short answer, which I can give because I’m now retired from the bar, is… we don’t know. That’s right, it’s uncertain. In lawyer’s parlance “untested”.

There’s a nice article by Joseph Grantz in the American Bar Association magazine for May/June 2011 entitled Digital Book Distribution: The End of the First-Sale Doctrine? that outlines the legal issues involved.

The most important paragraph in the piece is this:

Enacting a “digital first-sale” rule that would apply consumers’ expectations about loans and resale to digitally distributed copies seems, at first blush, quite simple. Congress could enact a statute stating, “It shall not be an infringement of copyright to reproduce a copyrighted work, provided that for each new copy produced, a lawfully made copy of the same work must be permanently destroyed.” Indeed, there is support in some older cases for the proposition that such a principle is already part of the common law of copyright.

The important thing to note about Joe’s proposal of a new digital first sale rule is that it isn’t a “get out of jail free” card for those who keep a copy of the digital books that they “share”. As Joe points out in the article the two main obstacles to making such a rule work are consumer “misbehavior” (sharing one copy and keeping another) and copyright holder countermeasures (i.e. copy protection and other technological restrictions).

But I see an even bigger problem looming. If vendors can’t find a way to let consumers legally share or resell their e-books that they and those consumers are comfortable with, in time the value of those books will fall through the basement and the medium might even shrink in market share over “real” books.

Of course there are lots of other problems with e-books apart from the tenuous (or nonexistent) ownership interest consumers receive in them. One is those countermeasures Joe talks about: encryption and other copy protection techniques borrowed from the software business. Like copy protected software, copy protected e-books are only as good as the availability of a means to read them. If a vendor goes out of business or drops support for an old format the consumer may find themselves locked out of their own library.

The other issue I see is a more generalized question about the “durability” of e-books. Digital media are notoriously unreliable and have a relatively short shelf life when compared to more permanent things like real books (a “non volatile storage medium”, as Blank Reg once said). Amazon is trying to address this by storing customer e-book files in their Cloud (do they have a special dispensation from the publishers that lets them keep those copies?). But I remain dubious. The fact is that I don’t expect any of the e-books currently on my Kindle to be available for reading by me 20 years from now — let alone any of my ancestors long after I’ve passed on. On the other hand I do expect that many of the hard bound books in my personal library will wind up on someone else’s bookshelf and may even outlast the century (Thomas Jefferson’s library from over 300 years ago can still be seen at the Smithsonian today).

Heh. There I go again. Turning a sort of interesting issue about digital intellectual property rights into another neo-Luddite critique of the impermanence of the written word in the digital age.

I guess I’m hopelessly stuck in an earlier time. Sorry.