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Getting What You Pay For
Evan Butterfield
JAN 18, 2013 11:24 AM
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In a recent column in the Los Angeles Times, Pulitzer Prize-winning journalist Michael Hiltzik expressed dismay and horror that, while a book-purchaser “owns” the book purchased, and can do as he or she pleases with it— read it, lend it, give it away, sell it, store it on a shelf for a few decades, feed it to the cat—those poor creatures who download books onto e-readers and mobile devices are only receiving a license, with limited ownership rights, and can never fully enjoy the right of owning the book. Their cats, in short, go hungry.

He’s not wrong, of course. It is true that the purchase of a book from, say, Amazon’s Kindle Store is in fact not a purchase but a license agreement. Readers are not buying a book: they’re buying the right to access the book’s content stored in Amazon’s cloud.

Back in Ye Olden Days, you went to your local bookstore, browsed the shelves, and selected a bound bunch of paper pages on which were printed a current best-selling novel, or the great insights of a political commentator, or the complete works of William Shakespeare. You bought your book from the bookseller, and it was Yours.

That act, buying a book, has legal implications. A “first sale” of a copyrighted work is actually an important moment in terms of copyright law.

Let’s digress, briefly, into Law Land. The set of legal rights enjoyed by a copyright holder (i.e., an author) can be thought of as a bundle of sticks. The five rights of a copyright holder under US copyright law are the rights to publish, adapt, perform, reproduce, and display the copyrighted work. These rights belong to the author alone from the moment a work is created in tangible form.  However, the author is not required to hold on to those rights. Because the rights belong to authors, authors are free to do with them as they please.

So the copyright holder can give or sell any or all of those sticks to others (in a standard publishing agreement, for instance, authors generally assign all their rights to the publisher). They can do so with any restrictions they like, or with none at all. For instance, an author could totally sign over copyright to a publisher forever, or grant the publisher an exclusive right to reproduce and distribute the work for a limited period of time.

In other words, if I ever get around to writing that novel, I have the right to keep it locked in a desk drawer, or permit a publisher to print and sell it. I can allow someone to adapt it as a musical on Broadway or rewrite it as a poem or produce it as a 3-D movie. I’m the only one who has that right, unless I’ve given someone else the “stick” that lets them make that decision. As long as the author retains those “sticks,” he or she is the only person on the planet who has the legal right to publish a work, adapt or make changes to it, perform or present it publicly, make copies of it, or show it to others. No one else has the legal right to do any of those things.

(The previous three paragraphs, by the way, are plagiarized directly from pages 21 and 22 of What Every Technical Author Needs to Know, a ReadyNote written by Your Humble Blogger and current CS President David Alan Grier, published last year by the CSPress, and available as an e-book on Amazon.)

So when you buy a physical book from a bookstore (whether brick-and-mortar or virtual), you are paying the copyright holder (usually the publisher) for the right to do as you please with that book. The publisher and the author no longer have any interest in what you do with the book: you can use it as a paperweight or a doorstop for all they care. You can read it, lend it, give it away, or, as has been suggested, feed it to your cat. In short, it’s your property to do with as you please.

(That does not mean, of course, that you now own the contents of the book: You cannot republish those words under your own name and claim copyright, for instance. You cannot make copies of the book and sell or distribute them—that right remains with the copyright holder. You can’t write a play based on the content without the publisher’s or author’s permission, because they still hold the copyright. You have bought one copy of the book, and that’s all you get.)

What Hiltzik is griping about, basically, boils down to this: You can’t use an ephemeral, ectoplasmic cloud of electrons as a doorstop. When you buy an e-book from Amazon, for instance, to download to your Kindle Fire, you are entering into a license agreement with Amazon. The license agreement includes this lovely language:

Use of Kindle Content. Upon your download of Kindle Content and payment of any applicable fees (including applicable taxes), the Content Provider grants you a non-exclusive right to view, use, and display such Kindle Content an unlimited number of times, solely on the Kindle or a Reading Application or as otherwise permitted as part of the Service, solely on the number of Kindles or Supported Devices specified in the Kindle Store, and solely for your personal, non-commercial use. Kindle Content is licensed, not sold, to you by the Content Provider. The Content Provider may include additional terms for use within its Kindle Content. Those terms will also apply, but this Agreement will govern in the event of a conflict. Some Kindle Content, such as Periodicals, may not be available to you through Reading Applications. (my emphasis)

So, yeah: you pay Amazon $8.99 or whatever, and you will instantly receive, through the technological marvel that is Whispernet®, the right to read A Game of Thrones: A Song of Ice and Fire: Book One by George R.R. Martin on your Supported Device (your e-reader, phone, or computer). You do not “own” A Game of Thrones: A Song of Ice and Fire: Book One. You cannot sell your Kindle Version of A Game of Thrones: A Song of Ice and Fire: Book One to someone else. In short, the only “first sale” right you acquired when you paid Amazon you $8.99 is that you now “own” the right to read A Game of Thrones: A Song of Ice and Fire: Book One. Congratulations.

But what, really, is so awfully wrong with that? In a previous blog I fussed (at some length) about how we all need to get over our infatuation with paper, and with paper-based publishing defining any kind of publishing. So here’s the clear corollary to that:

Times are changing, technology is changing, and we need to get over our obsession with owning stuff that doesn’t necessarily need to be owned.

Now, before you become distressed that I’m getting all Communist Manifesto on you here, let me be clear: I’m not now, nor have I ever been, a member of the Communist Party. I am not advocating for anarchy or the overthrow of the government or the abolition of private property rights. I’m simply saying that we should re-examine our apparent need for bookcases groaning with dusty and beloved tomes.

I used to own a lot of books. I would buy a book, and read it, and put it on a bookshelf in a public area of my home so everyone could see what books I’d read. The books I owned and displayed defined me: “Look at my bookshelf,” I was saying, “and you shall know me.” Well that’s just silly, really. I rarely re-read books I’d bought; they just sat there, defining me. The ones I did tend to re-read, in fact, I’d re-purchased in a more convenient digital form. The books I owned became part of the décor of my home, which was probably not what their authors had intended—but under the principle of First Sale, I was wholly within my rights to use some author’s years of work as three-dimensional wallpaper.

A while ago, I had an epiphany about this books-as-self thing, and promptly packed up boxes and boxes of books and donated them to a resale shop, where they’ll do more good, and likely be read again.

The point here is that the purpose of a book is to be read (I’m not focusing here on the rarefied world of academic research volumes, which may well serve a useful purpose in hardcopy format, but on “books” as a general concept: the stuff you’d find on the Times’ Best-Seller list, for instance). Authors write books to be read by readers. So if in this wonderful new age of digital content delivery, books are read by a million readers, does it matter whether or not the content is owned by those million readers? I would say No, it doesn’t. The same holds true for music and movies: iTunes and its abundant competitors and imitators let me buy albums without “owning” the vinyl; the recently-launched Ultraviolet system will likely replace massive DVD collections over time, freeing up countless linear feet of shelf space in homes around the world.

(And, by the way, no one is necessarily saying that you may not own a book. For $20 you can buy a lovely hardcover edition of A Game of Thrones: A Song of Ice and Fire: Book One and do anything you like with it. The wonderful thing about the digital revolution in publishing is that it doesn’t simply replace one publishing method with another; it enriches the universe of choices: people who want hardcover books can get them; people who want a Kindle download can get that. People can get paperback versions or feature-rich digital versions, depending on what, exactly they want. What’s the rationale for making all these choices conform to the same rules and limitations as the lowest-common technological denominator?)

Really, who is hurt when book content is licensed to readers rather than ownership transferred to them? Authors receive a royalty from publishers for the first sale (or “first license”) of their book, regardless of format, and get nothing after that event. No harm there. Readers want to read the content, and there’s no problem with that as long as their hardware is still supported.

Oh there’s that. Hiltzik is deeply concerned about what happens when Amazon goes out of business, or stops supporting Kindles because something better has come along. What happens is this: people upgrade. How many of us are still relying on 5.25-inch floppy disks (the kind that really flopped)? Sure, some folks insist on maintaining music collections in vinyl, but most people have recreated and expanded their music collections digitally—relying on Apple or Google or Amazon to continue to support the music file format.

This is not a simple issue, and I’m aware of that. A digital content distributor can (and Amazon and Apple have) spontaneously wipe-out peoples’ digital libraries for one or another violation of the Terms of Service. Digital rights management (DRM) technologies offer opportunities to duplicate book ownership rights in electronic publishing, but often at a cost both in terms of price and functionality. These are things I’ll no doubt natter about another time. Plus the US Supreme Court is going to rule sometime this year in a “First Sale” case, Kirtsaeng v. John Wiley & Sons, Inc., that may change all of this.

For now, though, it seems to me that just as we have to rethink our reliance on paper paradigms, we also need to rethink our notions of the relationships between authors and publishers and readers. It doesn’t make sense to try to duplicate in digital delivery the limitations and restrictions of the physical world: digital offers so much more portability, functionality, and enrichment of the reader experience than a static bundle of paper: why try to put a book cover on that?

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