Book sellers like Amazon and Barnes & Noble are selling increasing amounts of e-books. Unlike a physical copy of a book, however, they do not sell the same ownership rights — including those protected by the first-sale doctrine — for e-books as they do for printed copies. Instead, they sell the books under a license agreement. From Amazon a customer who “buys” an e-book gets a “non-exclusive right to view, use, and display” the book an unlimited number of times on his or her Kindle device — unless, of course, Amazon decides to revoke the license. This is similar to the licenses that producers use to sell software and fonts.
Despite the very different products, Amazon and other booksellers still represent the transactions as being equivalent. We “buy” an e-book the same way we buy a printed book, but the bundle of rights is actually much smaller. Does this matter? What equivalents are there which might help us decide whether Amazon and others should be allowed to represent the transactions as equivalent? For example, would a land owner be allowed to call a de facto lease agreement a “sale” of the property without ensuring that the other party reads the contract?
Amazon has begun to give some rights to e-book buyers that they would expect from printed books. Amazon allows e-book buyers to loan their copy of the e-book once, for a period of 14 days.
There does often seem to be a discount in the price of e-books as compared to their printed versions. It’s not clear whether the discount is attributable to the smaller bundle of rights sold, or the reduction in overhead costs (printing, shipping, storing). Prof. Strahilevitz’s Information and Exclusion, for example, costs $50 on Amazon for the printed version, but just $40 for the Kindle version.
It's interesting that Amazon is also catching some heat from the other side in a debate with the Authors Guild. Some authors and publishers argue that Amazon's new lending program breaches their e-book distribution contracts. The argument is not that publishers aren't getting paid (they are), but instead that publishers did not "surrender this level of control" to Amazon. http://arstechnica.com/tech-policy/news/2011/11/kindle-lending-library-mere-exercise-of-brute-economic-power-says-authors-guild.ars
Posted by: Marion Miller | January 05, 2012 at 11:46 AM