Mike Shatzkin has an interesting post in which he makes the claim that (1) readers never own an e-book; they just own a license, and therefore (2) readers should stop complaining about DRM and the lack of the right of first sale, things that are “silly conversations” in the digital world.
The second point first: Shatzkin’s post is an exercise in circular logic, because the legal intricacies of license versus ownership are totally irrelevant to the questions he purportedly dismisses.
It is not enough to say “an e-book is only licensed.” Licenses have content that restrict use. There is no magical default license language in the sky–publishers and distributors set the terms of the license. If the publisher says, “you may not lend your e-books,” the license that the reader gets does not allow lending. If the publisher says, “you may lend your e-books,” lo and behold, lending is allowed.
It begs the question (note the correct use of the phrase, please) to say that readers should not complain about DRM because they have a license. Why the heck can’t readers complain about a license, when the terms of that license are dictated by the publisher? Even assuming that Shatzkin is right about the license/ownership debate, why is it a “silly conversation” to talk about the terms of the license? It’s not silly to complain when you are paying more for books where you receive fewer rights.
Saying “because it’s a license” doesn’t answer any of those questions. It just tells you why you have the questions in the first place. The question of license versus sale is irrelevant to the question of the content of the license. It is never a silly question for consumers to say to producers, “We would like a different license, please.”
There should be a name for the logical fallacy of equating “legal” with “unarguable,” but in an event, that’s what Shatzkin is doing.
Now we come to the second count: Shatzkin basically asserts that you don’t own your e-book; you merely have a license to use it. This is a categorical claim that does not track the (still unsettled) law on the question. As a note, I think Shatzkin is confusing ownership of the copyright with ownership of a copy.
To make the distinction clear: I own a copy of this paper book that I am holding in my hand. (It happens to be Tiffany Clare’s The Seduction of his Wife, in case you’re wondering.) I bought it at the store. Buying that copy gave me certain rights: the right to read it, to read it aloud, to give it away on my blog, to lend it to a friend, to resell it to someone else. I have the right to make an archival copy for personal use. I own a copy.
I do not own the copyright, nor do I have a license to distribute. That means that I cannot make photocopies of the book and distribute or sell them.
Now, let me start this off by saying that I have never seen anything that suggests that you cannot sell a digital copy. If anyone can point me to that, I’d love to see it. It’s true, however, that most sellers would prefer to license digital copies. This is because the seller retains more control that way. But no person can categorically state that all e-books are merely licensed and not sold. If you want to know if you have a license or a sale, you have to look at how the item in question is transferred. In Vernor v. Autodesk, the Ninth Circuit explained:
A software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions.
(For reference purposes, the Ninth Circuit falls on the “more likely to read as a license” bit of the license/ownership debate; this debate is not over by any means.)
Under this standard, I suspect at least some of the e-books I have purchased are in fact sales and not licenses. It’s also quite clear to me that nobody can say, “you didn’t buy your e-books!” without looking at the terms of the transfer. And someone who says, “Gosh, we’re all calling them sales, and that’s wrong!” needs to look at factor (1) in the standard above and ask, “If we are calling them sales, can they actually be licenses?”
Of course, my analysis doesn’t mean that we must perish under Shatzkin’s parade of horribles, in which one person buys one copy and then transfers it to infinity and beyond. The transfer of the digital copy requires you to effectively make a copy–something you can’t do with a print copy–and it’s an open question whether that is allowed for owners of a copy. You’d probably have to have a license to do that.