Thursday, December 26, 2019

Copyright Exhaustion Does Not Apply to E-books

Rory O’Neill:

In a highly-anticipated decision, issued today, December 19, the Court of Justice of the European Union (CJEU) held that offering ‘second-hand’ e-books for sale qualifies as an unauthorised “communication to the public” under the 2001 InfoSoc Directive.


This is because e-books do not deteriorate with use and are therefore a perfect substitute for new physical copies of the work.

In a way, e-books with DRM do deteriorate because there is always the risk that the DRM provider will get out of that business or stop supporting the platform you care about.

Via Howard Oakley:

According to the publishers in that recent case in the CJEU, you get a perpetual licence (not ownership) to access their copyright content, which never deteriorates in the same way that physical books do. As a result, the publishers claimed successfully, you aren’t free to sell on your licence, and can only do so if they, the copyright owners, agree.


What amazes me about all this is that the many penalties and drawbacks of eBooks aren’t the result of the medium itself, but have been cunningly devised and implemented by eBook publishers. It’s almost as if they don’t want us to license eBooks in the first place.


At one extreme it seems unfair that I could buy a book and then pass it on and eventually the whole world reads it and the creators only got one sale. At the other (and very real) extreme, it seems unfair for my ebooks to die when I do; I can’t bequeath them.

In the latter case, “going out of print” means “when all the purchasers have died, this thing will cease to exist, and you are not even allowed to pay for it to keep it alive”.

Ebooks aren’t only selling less than everyone predicted they would at the beginning of the decade. They also cost more than everyone predicted they would — and consistently, they cost more than their print equivalents.


The case of US v. Apple encapsulates the dysfunction of the last decade of publishing. It’s a story about what we’re willing to pay for books — and about an industry that is growing ever more consolidated, with fewer and fewer companies taking up more and more market share. What happened to the ebook in the 2010s is the story of the contraction of American publishing.


2 Comments RSS · Twitter

>you get a perpetual licence

I'm not sure if anyone questioned this. I think the question was whether you could transfer this license to somebody else. It seems that you can't, which, I guess, means that you also can't inherit digital goods?

In the end, this is a dumb move on the publishers' part. There was never going to be a huge market for second-hand e-books to begin with, but antagonizing customers and decreasing the perceived value of bought e-books will only lead them to pirate the books instead.

Yep. I figured that was a strange bit of phrasing as we the consumer understand the licensing versus owning aspect, but thought perhaps it would be nice to fully transfer said license to another party. Too bad that answer was a resounding no.

Alas, we as consumers have some decisions to make. Do we continue to purchase DRM encumbered digital media? If so, are the trade-offs worth it? If the e-media prices were drastically cheaper, then yes, that seems like a somewhat fair trade-off for single license purchases. As prices are often not significantly cheaper, single license purchases seem prohibitive. My own personal choice is to purchase as much DRM free content as possible, side stepping this whole issue. However, for those times I do not, I focus on price first, E.g. I purchased a bundle of games off Steam for a super low price for each individual game, so the inability to hand down the games does not seem particularly problematic and there is a limited sharing feature as well.

For other DRM purchases with draconian licensing and higher prices, I certainly feel no qualms about stripping DRM from the e-media whenever possible. I do not strip DRM for the purposes of wide redistribution, but generally to allow myself or my immediate family to access said media on the device of their choice. E.g. I do not buy as many Kindle ebooks because Nook DRM is just as easy, if not easier to strip, and a naked EPUB is widely compatible with our third party e-reading devices/software. No conversions necessary. I know the ease of which DRM can be removed is not ideal for Barnes and Noble and the publishers, but this unofficial loophole means I actually continue to purchase said eBooks whereas I would simply stop if I was stuck with DRM from a company that could discontinue access at any time!

Leave a Comment