From The Conversation:
Microsoft has announced that it will close the books category of its digital store. While other software and apps will still be available via the virtual shop front, and on purchasers’ consoles and devices, the closure of the eBook store takes with it customers’ eBook libraries. Any digital books bought through the service – even those bought many years ago – will no longer be readable after July 2019. While the company has promised to provide a full refund for all eBook purchases, this decision raises important questions of ownership.
Digital products such as eBooks and digital music are often seen to liberate consumers from the burdens of ownership. Some academics have heralded the “age of access”, where ownership is no longer important to consumers and will soon become irrelevant.
Recent years have seen the emergence of an array of access-based models in the digital realm. For Spotify and Netflix users, owning films and music has become unimportant as these subscription based services provide greater convenience and increased choice. But while these platforms present themselves clearly as services, with the consumer under no illusion of ownership, for many digital goods this is not the case. So to what extent do we own the digital possessions that we “buy”?
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The popularity of access-based consumption has obscured the rise of a range of fragmented ownership configurations in the digital realm. These provide the customer with an illusion of ownership while restricting their ownership rights. Companies such as Microsoft and Apple present consumers with the option to “buy” digital products such as eBooks. Consumers often make the understandable assumption that they will have full ownership rights over the products that they pay for, just as they have full ownership rights over the physical books that they buy from their local bookstore.
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However, many of these products are subject to end user licence agreements which set out a more complex distribution of ownership rights. These long legal agreements are rarely read by consumers when it comes to products and services online. And even if they do read them, they are unlikely to fully understand the terms.
When purchasing eBooks, the consumer often actually purchases a non-transferable licence to consume the eBook in restricted ways. For instance, they may not be permitted to pass the eBook on to a friend once they have finished reading, as they might do with a physical book. In addition, as we have seen in the case of Microsoft, the company retains the right to revoke access at a later date. These restrictions on consumer ownership are often encoded into digital goods themselves as automated forms of enforcement, meaning that access can be easily withdrawn or modified by the company.
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My research has found that many consumers do not consider these possibilities, because they make sense of their digital possessions based on their previous experiences of possessing tangible, physical objects. If our local bookstore closed down, the owner wouldn’t knock on our door demanding to remove previously purchased books from our shelves. So we do not anticipate this scenario in the context of our eBooks. Yet the digital realm presents new threats to ownership that our physical possessions haven’t prepared us for.
Consumers need to become more sensitised to the restrictions on digital ownership. They must be made aware that the “full ownership” they have experienced over most of their physical possessions cannot be taken for granted when purchasing digital products. However, companies also have a responsibility to make these fragmented ownership forms more transparent.
Link to the rest at The Conversation
PG suggests that there are not gray areas with ebooks like the OP implies.
In fact, no reader owns an ebook. They own a license to an ebook that describes their rights with respect to the ebook.
If the license says it can be terminated for any of a variety of reasons and such termination occurs, the reader will no longer have access to the book.
The legal difference between an ebook and a physical book, both of which are protected by copyright is the First Sale Doctrine. Per the United States Department of Justice:
The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. The right to distribute ends, however, once the owner has sold that particular copy. See 17 U.S.C. § 109(a) & (c). Since the first sale doctrine never protects a defendant who makes unauthorized reproductions of a copyrighted work, the first sale doctrine cannot be a successful defense in cases that allege infringing reproduction.
Further, the privileges created by the first sale principle do not “extend to any person who has acquired possession of the copy or phonorecord from the copyright owner, by rental, lease, loan, or otherwise, without acquiring ownership of it.”
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Most computer software is distributed through the use of licensing agreements. Under this distribution system, the copyright holder remains the “owner” of all distributed copies. For this reason, alleged infringers should not be able to establish that any copies of these works have been the subject of a first sale.
Link to the rest at US Department of Justice
Here’s a bit more on the First Sale Doctrine from Nolo:
Every day, millions of consumers make use of the first sale doctrine. This copyright doctrine permits the purchaser of a legal copy of a copyrighted work to treat that copy in any way he or she desires, as long as the copyright owner’s exclusive copyright rights are not infringed. This means the copy can be destroyed, sold, given away, or rented.
A common example is the rental of movie videos, where the store purchasing the disks is entitled to rent them out without paying any royalties to the owner of the copyright rights in the movie. The term “first-sale doctrine” comes from the fact that the copyright owner maintains control over a specific copy only until it is first sold.
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It is important to remember that the first sale doctrine is very narrow. It applies only to a specific copy. No rights are granted as to the underlying work.
For example, except as provided in the Copyright Act of 1976, the owner cannot reproduce, adapt, publish, or perform the work without the authorization of the author. All that the consumer can do is to dispose of the particular copy that has been purchased. For example, the first sale doctrine does not permit the owner of a book of copyrighted art prints to separate the prints, mount them in frames, and sell them separately.
Moreover, the first sale doctrine applies only to the owner of the work, not to a person who possesses the property but does not own it. For example, imagine that a store purchases a lawfully made copy of the movie, Gone With the Wind. As the owner of that copy, the store can rent it to an individual. However, the person renting it cannot rent the copy to someone else. Only the owner of the copy has such rights.
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There are exceptions to the first sale doctrine. As a result of lobbying by the computer and music industries, the rental of computer programs and sound recordings is prohibited. The sound recording exception is limited to musical works; it does not extend to audiobooks.
It is also not permissible under the first sale doctrine to destroy a fine art or photographic work that meets the requirements of the Visual Artists Rights Act (for example, signed and numbered photographs created in limited editions of 200 or fewer copies). The public policy rationale for this is obvious; as a society, we do not want to allow the destruction of original works of art under a narrow copyright provision.
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In 2013, the U.S. Supreme Court ruled that there are no geographic limitations on the first sale doctrine. In that case, known as Kirtsaeng v. John Wiley & Sons, Inc., a Thai student came to America to study, and engaged in a business arrangement with his family in Thailand. They would send him the books purchased in Thailand for a low price, and he would resell them in the U.S. market, which charged higher prices.
The student expanded the business and eventually earned $100,000 in profit. U.S. publishers sued the student, arguing that the first sale doctrine did not apply to “gray market goods,” which involve lawfully made goods that were imported into (but not made in) the United States.
The Supreme Court disagreed and ruled for the student, stating that as long as the copies were lawfully made under the direction of the copyright holder, there was no requirement that the books be manufactured in the United States. In other words, the student could use the first sale doctrine to do what he wished with his own copy of the book, even though he did not own the copyright.
Link to the rest at Nolo
Nolo has more about the Visual Artists Rights Act, which limits the rights of an owner of a physical art object in ways the rights of the owner of a printed book are not limited.
Certain types of artworks receive more rights than are normally granted under copyright law. The federal government has created a statute—the federal Visual Artists Rights Act (“VARA”)—that grants rights affecting the resale and destruction of artworks. Only some artworks receive protection under VARA—paintings, drawings, prints, photographs, or sculptures, in a single copy or limited edition of 200 copies or fewer (that are signed and consecutively numbered).
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The VARA statute protects you, as the creator of a work of visual art, from “intentional distortion, mutilation, or other modification of that work that would be prejudicial to your honor or reputation.”
This is the most powerful right granted under the VARA provisions. For example, if a collector buys a limited edition silkscreen from you (fewer than 200 prints were made), the collector cannot destroy it without your permission. If the work is destroyed, you can sue under VARA and recover damages, provided you can prove that your reputation was damaged.
The rule regarding destruction does not apply if:
- the work was created prior to enactment of the VARA provisions on December 1, 1990
- you specifically waived the rights in a written statement, or
- the destruction or modification results from the passage of time or because of the materials used to construct the work. For example, certain works such as ice sculptures and sand sculptures by their nature self-destruct, and the owner would have no obligation to affirmatively prevent such destruction.
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If artwork is created as work made for hire, there are no VARA rights. That is, although normal copyright law applies to the work, neither the artist nor the person commissioning the work can claim rights under VARA. For example, if you hire an artist to paint a mural on your wall, you have the right to later destroy or repaint that wall, since the original mural was a work-for-hire.
Link to the rest at Nolo
For those who have noted the manner in which limited edition duplicate artworks are marked, e.g., “5/75,” one of the reasons for this mark is to give a purchaser notice that the work may be subject to VARA restrictions. Another is, of course, to communicate the rarity of a single piece of art – there are only 75 of this particular piece in the world.
Generally, a limited edition of a better quality than other duplicates of an artwork. Typically, the limited edition is made directly from the original and it is customary for the artist to supervise the creation of limited editions and to sign and number each one to help assure each copy’s authenticity and fidelity to the original.
The personal supervision of the artist usually involves the creation of one or more artist’s and/or printer’s proofs. High end printers intended for the creation of high-quality artistic duplicates can be adjusted to make the duplicates more accurate copies of the original artwork, which is typically scanned into a large digital file with sophisticated digital scanners.
Once the artist is satisfied with the quality of an artist’s proof, a production file is created and the settings of the printing press are locked into place to assure each limited edition print is faithful to the printer’s proof. After the production of all limited edition copies, typically, the production file and proofing files are destroyed so no further copies may be made.
Under common artistic replication standards, the creation of a limited edition does not preclude the artist from authorizing other copies of the original artwork in the form of mass-produced offset prints, giclées and canvas transfers which will be less accurate copies than a limited edition is.