Is it Lending or Stealing?
TweetPosted By Scath on October 23, 2009
An interesting discussion about reader’s rights and lending e-books over @Dhympna’s CulinaryCarnivale sent me researching.
You see, although I’ve been a reader for 35 years, I never wondered what my rights were as one.
Being a writer who sells e-books, I’ve never viewed them and print books as the same thing, except on two points: they’re both products and both can be read.
The first step I took was to open one of my paperback books to read the copyright statement. The word ‘distribute’ caught my eye. One of its definitions is ‘to give out or deliver especially to members of a group’.
Whoa, I thought. Technically, making it available to anyone is copyright infringement. Holy shit, I’m a criminal! All those books I’ve loaned, donated, traded or sold in yard sales over the years!
Of course, I knew that couldn’t be reality, or we wouldn’t have libraries, second-hand bookstores or book swap meets. So I turned to Google, and after a few different tries at phrases, I was led to something called ‘first sale doctrine’.
To my relief, it cleared me of any chance the Book Police would show up to throw my ass in prison. Whew!
What it basically means (or this is what I got out of it) is that if a copy of a book is legally attained, the ownership of it then passes from author/publisher to the consumer. The new owner can’t reproduce the book in any fashion, but he/she can resell, loan or give it away.
In doing so, he/she is relinquishing all control of the book (rights of ownership, etc.) so it’s fine and dandy, because they didn’t reproduce it.
Here’s the kicker, folks: first sale doctrine doesn’t apply to e-books because they are digital files and when you purchase one, what you’re actually purchasing is a license that allows you to retain a copy of it for your own personal enjoyment/usage.
Even if it did apply, if you ‘lend’ an e-book to someone else, you are giving them a copy of it – you’re reproducing it.
There is only one way to relinquish purchased ‘control’ of an e-book: deleting it from your hard drive, ereader, or whatever you have it stored on.
Short version: Reproducing a book has never been a reader’s right. It’s copyright infringement.
So legally, readers don’t have the right to lend e-books.
With me so far? I know I tend to babble. 
Barnes & Noble’s brandnew ereader, the Nook, comes with a lending capability. This lending capability uses DRM; loaned e-books delete themselves in fourteen days.
Libraries with e-book loaning programs use DRM. Companies who sell ereaders, such as Amazon, also place DRM on e-book files sold through them.
DRM is alive and well, despite the outcries that the use of it implies consumers are just criminals waiting to happen.
In case you don’t know what DRM is, you can go read about it here.
Now, as someone who has created digital products and is an author who sells e-books, it’s my responsibility to make some effort to protect my copyrights.
As a new author hoping to sell and seeing that above attitude about DRM all over the place, I quickly realized it would harm my chances to place DRM protection on my e-books – unless I sold through venues where people had already agreed to DRM infection (as some people prefer to call it).
Not a problem, because there’s Amazon, Sony, Barnes & Noble, etc. where I can submit my titles and sell through that use some form of DRM.
But what about those potential readers who are firmly against DRM?
Smashwords, my own website and my publishing imprint’s bookstore to the rescue! My bases are covered, I have both DRM and non-DRM versions of all my titles available. Hah!
Just for kicks, guess which I have the most sales of? The Amazon Kindle versions ‘infected’ with DRM. Go figure, right?
Back to the lending thing.
As pointed out, reproducing a book has never been a reader’s right, and I’ve stated many times before that you can’t loan or share an e-book without making a copy of it.
Books and e-books are apples and oranges because of that fact. The subject of ‘lending’ e-books is intimately entertwined with things like piracy and copyright infringement because of that fact.
But let’s be serious: loan a copy of a non-DRM protected e-book to a friend or family member, and who’s going to know?
The two of you and that’s it. Unless one of you tattles.
I’m not advocating that you do so, because that would be encouraging you to break the law and probably result in both of us doing some prison time for conspiracy or something.
But, as was pointed out over at Dhympna’s blog (FYI, Blogger seems to be experiencing some problems right now), sharing books is spreading word of mouth and that is advertising you can’t pay for and may very well end up profiting from.
Those who were ‘loaned’ the e-book might enjoy it enough that they purchase it for themselves, or purchase some of your other titles.
This is an ideal situation where everybody wins. Yay!
But authors can’t trust in ideal situations (no one can). Not taking steps to attempt protection of your copyright or pursuing cases of infringement could potentially come back to bite you in the ass over something more serious than someone loaning Cousin Stacy a copy of one of your e-books.
Usually that just means that the author puts a copyright statement in the e-book file. Some may go a bit further and file with the Copyright Office.
Think about it: most people don’t have $150,000 lying around in change. An e-book lender or an e-book author. My point being, barring someone finding out, the author in question being independently wealthy and an asshole determined to make an example out of you and Cousin Stacy, it’s highly unlikely you’d be sued for copyright infringement because you loaned that e-book to her.
Ultimately, regardless of legality, it’s the reader’s decision to ‘lend’ an e-book out and to my fellow authors: dudes, there’s not really anything we can do about it.
While Cousin Stacy might never consider tossing that e-book up on a file sharing network or burning it to a CD to sell on eBay, she could ‘lend’ it to someone who wouldn’t think twice about doing so.
You can’t guarentee anyone’s actions but your own.
I did suggest only loaning the free titles authors may have available. To me, that seems to serve the same purpose of introducing others to an author you’ve discovered and enjoy.
Dhympna suggested there might be better understanding if people knew how little authors actually earn, so my next post will be about that.
Right now, I’m off to bed. Good night!
Related: Sandra Hill’s Food for Thought and NYT’s Will Books be Napsterized?
About the author
Scath
I'm a gun-toting alien with a fetish for fur and four-legged creatures who writes fiction & tweets. Bonus! I have a katana. Indie author/self-publisher.Comments
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I was talking to another author this morning. I came to my own conclusion that, if I could lend a book to say my mum for a limited period of time (this copy cannot be copied or lent by my mum to other people)in a manner that protected the author (even if my copy was locked while it was “out”), I would be happy. I would even be willing to pay mass market paperback prices for said e book.
I own roughly 1500 books. My other half wants me to embrace e books before my, um, physical books take over our small apartment. I think that for me, loss of “first sale” bugs me. I am trying to embrace e books, but this kills it for me.
I am speaking strictly as a consumer and telling you what makes me tick.
@Dhympna
I do understand your point of view, being a reader myself.
I told you that you were the first person I’d seen say you’d deal with DRM in regards to e-books and in the interests of helping to protect an author’s copyrights.
As an author, I’d totally be into making lending of my titles possible if I knew how to put such DRM protection into effect (the limited time, file deletes and/or your copy being locked until she ‘returns’ it) and or the funds to have that done.
But from what I’ve seen in my trawling around message boards and blogs, most people don’t feel the same way.
That puts e-book authors in a corner: use DRM, people say you’re implying they’re criminals. Don’t use DRM, and you risk opening the door for that one person out of thousands who’ll tromp all over your copyrights by sticking your e-book on a file sharing network or reselling it.
Solution?
Make all readers like you, LOL.
Is that feasible? Nope, so we’ll continue to have the reader vs. author/publisher battle over e-books until something happens that provides a solution both groups are happy with.
Or can at least agree is a viable solution they can both work with.
So, I have been doing some research on “First Sale Doctrine” and e-books. Most authors have argued that an “ebook” is an electronic thing (trying to avoid book) and that because it is an intellectual property and not a physical “thing” it is excluded from “first sale doctrine.”
They are not excluded. There is no precedence for exclusion. The only exclusion that does exist is for computer software and programming.
As the law stands now, I could have flashdrive full of books and sell that flashdrive (no other copies) and be within the legal limits of “first sale doctrine” law.
Now, a lot of authors claim that that the Digital Millenium Copyright Act allows the creator to control that copy of the book you sold to a reader. No it does not, it allows you to implement means (like DRM) to prevent copying, but does not give you the complete control to distribution and copying of your work once it leaves your hands. Now, if you have DRM on your book file then it *does* become illegal for the reader/user to circumvent that programming.
That is what my research has turned up.
I should also point out I need to ask my lawyer friends about this, to see if my interpretation is true. It *may* be splitting hairs, but it is interesting.
I am amused because some book bloggers openly brag that they crack DRM. Hmm.
If you put it on there, then it is illegal for a user to remove it.
Interesting point, and I did a bit more research too.
The scenario you proposed IS perfectly legal if the e-books were legally purchased and downloaded directly to that flash drive, on the same grounds as if you purchased a physical book and sold it.
They’re completely leaving your possession, you’re giving up all rights of ownership to them.
But if you purchase them, download them to your computer’s hard drive or ereader, then transfer them to that flash drive and sell it, you’re right back to unauthorized reproduction and copyright infringement.
I’ve been thinking about this since yesterday, and this is kind of what I’ve come up with -strictly my personal opinion/thoughts:
A non-DRM protected e-book with a valid copyright enjoys the same protection by copyright laws, just like a physical book.
A DRM protected e-book with a valid copyright can fall under DMCA if the DRM is circumvented, but it’s also entirely possible copyright law could take precedence (assuming actual copies were made and disseminated).
But not taking either of those into consideration, there’s this: when you purchase e-books from wherever, there’s almost always Terms of Service presented, which most people skim right past and blindly agree to just to speed up their sign up process.
If the Terms state you’re agreeing to respect the authors’ copyrights and won’t resell, etc., then that *can* be another possible source of legal recourse.
In reverse of how that could be something the authors can use to pursue legal actions, there’s the woman some authors were calling a thief because she was sharing an Amazon account with others, and hadn’t actually paid herself for any of the e-books she’d read.
Amazon’s Terms of Service allow that, which I think you or someone who commented pointed out over on your blog yesterday.
Of course, it’s all a little murky to certain degree, because e-books are seldom specifically mentioned and as far as I know, there hasn’t yet been a case taken to court over copyright infringement or piracy of them to provide a firm basis of how the courts will handle rulings.
Also, I’d love to hear what your lawyer friends say, since they would probably know better than us armchair, Google using types.
Um, that woman *had* paid for books on that account. She clarified that on her blog. That was what pissed me off to begin with–so many authors called her a thief when, in reality, it was a reporter who mixed up the facts. The facts are this–they all buy books on that account but use the same credit card and pay friends back.
I am aware of Terms of Service. In my scenario there is *only* one copy–the flash drive.
The main problem is that there really isn’t and precedence for this. The movie, music and software industries are not good models to follow because consumers interact with books differently.
I admit to watching all of this with great interest.
Well then, they definitely had no grounds to be screaming ‘Thief!’ at her, LOL.
It will be interesting to see how it all pans out – and how long it’ll take for it to do so.
I should start a pool on that – when the first ruling concerning e-books occurs!
Except I don’t know how that whole pool thing works. Idea fail. Oh well.