eReaders, Part 1

Readers are huge this season, and arguably a very progressive way to go about having an extensive collection of books. They’re also a cool digital toy that is apparently on the hot list for kids 6-12. (I’m not kidding! ) But when everyone is comparing the specs for the devises… I’m more interested in how the readers interact with the Copyright law.

Now where books are concerned – some people, like myself, highly enjoy the physical experience of owning books – the smell, the touch, and the library one collects over a life time. However, others put more value in the ability to access to a large number of potential reading material at any point in time, and/or to not have an enormous library of physical books. (In effect: to do to books what the walkman, CD player and the MP3 player have done for music.) And we all know how important value  is when attempting to get someone to purchase merchandise.

So with that in mind, I am interested in investigating how the top eReader companies are addressing this need – especially where the licensing and use is concerned for consumers. I’ve heard plenty of rumors about various eReader users loosing entire libraries of content for X reason, and Y company being unable to help them recover the data or say that it’s their fault for not backing up the device, etc. I’ve also heard (substantiated) rumors that the Kindle has a “book sharing” system, where you can lend books to other Kindles – which means that there is value in possessing a pseudo-physical piece of property.

All of these concerns, in my opinion, come from the reality that eReader users put both physical and non-physical value in the same devise. Consumers want:
(1) the value of an electronic library which can be electronically stored, backed up, and recovered should something happen to the physical device, and

(2) the value of a physical device which can trade the non-physical, licensed books like they are real property. (Talk about a double edged sword!)

As I see it, the first situation (1) should be dealt with by the company providing the device in the form of customer support. If you have a proprietary eReader, where by you can only download books from that point source, you arguably have an account with that point source that has a record of your purchases. If you loose the file, for whatever reason (other than some how permanently giving the file to another user (another physical/non-physical paradox)), you should arguably be able to download new copies of the books you have already purchased because they will have a record of that sale. If you have an open eReader, where you can put any book from any point source on your device, then it would lend itself to a more traditional situation – you have to back up the files so that you don’t loose them. This second option is more like a traditional, physical book purchase; if you loose your physical book, then it’s gone.

The second situation (2) is something more of a problem because it starts to play foul with what we lawyers know as the First Sale Doctrine  – and the rest of the world knows as the secondary market of used books. The First Sale Doctrine means that you cannot be sued by a publisher for selling a book you bought at Borders from them to a friend. The reality with eReaders is that they are “licensing” copies and to you, which means they are selling you the right to own a copy. It is very similar to a software license with it’s End User License Agreement  that restricts you from re-selling software that you have previously used. (Plenty of current legal cases to go with that thought – but unless I turn this into a legal article to be published academically, y’all won’t care so much.)

The eReader’s problem is that they are both treating eBooks as being licensed (they can only be used on proprietary eReaders (the license is only for the Nook, say) or  they are treating the eBook as having some hint of real property by allowing you to “lend” it to other users. Now granted, the companies licensing these books could very well be including the ability to “lend” in the license, but we all know that if you give a mouse a cookie, they’re going to want a glass of milk. It is very easy to imagine consumers demanding a secondary digital market for books – which despite being extremely hard to pull off in my opinion, could theoretically be viable. But that’s slightly beyond the point of this post.

What I’m actually looking into with the eReaders is what they are licensing (digital rights in books, either exclusively or non-exclusively) and how they are attempting to control what is on the reader (proprietary DRM or other controls). There’s also the fact that all throughout this intro I haven’t mentioned that the readers are still a middle man – the digital rights to the books are licensed to the store, either exclusively or not, and if the store provides the reader, then the store can still claim some modicum of control over the digital rights to the book (you can’t reproduce it or sell it to others, etc.). It’s a whole chain of “I sell X Store the digital rights and the ability to license those rights to Y consumer. X Store can then limit Y consumer from using the book on Z reader through DRM (digital rights management)” –  in a worst case scenario. In a better picture – “X store get the digital rights and sells it to Y consumer in a format that be read on all readers”.

Wow – even my head is spinning, now.

So in an effort to provide some sort of guidance to people buying eReaders this gift-giving season…
I am investigating the legal aspect of the three big readers: Nook (Barns and Noble), Kobo (Borders), and Kindle (Amazon). I’m also going to look into Apple’s iBook appication for the iPad – but that seems to be a slightly different market, as I doubt someone would by a $500 eReader. (They would by a $500 mini-computer with an eReader application, though – so I’ll check). And yes, I know there are many other eReaders out there, but for the purpose of this thought experiment I want to focus on the groups that already sell a majority of the hard copy books in the mass market.

So here’s what I’m looking for:

* What is in the license for the copyright of the books purchased? (Digital Rights)

* Storage and the ability retrieve “lost” books (Digital Copy Value, Customer Support)

* The Ability to trade books with other users. (Hard Copy Value, Secondary Accessibility)

* The Ability to buy and read eBooks from multiple sources. (Non-Proprietary market)

* The effect of DRM on eBooks (Proprietary mark)

* … and anything else that comes up that I didn’t expect.
And I’ll get back to y’all soon with what I find… This is going to take some digging through fine-print

Pax,
aTtorney, Esq.

 

(c) Nicole L. M. Jurkowski 2010

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