Re: International E-book Sales Restrictions Explained

On 16/06/2012 00:54, Robotech_Master wrote:
> On Fri, Jun 15, 2012 at 9:35 AM, joseph harris<[email protected]>wrote:
>
>
>    
>> Copying without permission is a breach of copyright law; creating a
>> different format is a breach of copyright law. The latter is probably
>> more serious than the former, and the former is already fundamental to
>> copyright itself.
>>
>>      
> Yes, but I fail to see how that comes into this. We're talking about a
> store buying a physical copy of a book, then selling it to someone outside
> of the country. There's no copying involved there, with permission or
> without.
>
>    

You seem to have forgotten then that this was about using a digital file 
to create an image on canvass, Hayden's proposition.  And there most 
certainly is the issue of creating copies; as I pointed out earlier, it 
goes further than a simple copy.
>    
>> Your further point above shows the confusion which I talked of in my
>> earlier post. First doctrine, which is specifically American law and
>> interpretation,
>
> Which fits, since we're talking about *American* stores selling paper books
> to overseas
>    

We most certainly were not doing that. Stores are middlemen, and are as 
bound by the limitations of an edition as anyone else under the 
copyright laws. Booksellers are not exempt from laws properly passed by 
the legislature of the country in which they exist.

>
>    
>> does not permit a person to do absolutely anything with
>> the goods, but it does give the right to sell as second hand a physical
>> item, and that freedom pertains in almost every other country according
>> to the variations in their own laws. There is, however, no logical
>> parallel between a second hand physical book and a new-format digital
>> file, or a print from a file in a specific digital format into a print
>> book, or into a pictorial physical object.
>>
>>      
> Are we arguing at cross purposes here? You seem to be arguing with a point
> I didn't make.
>
> When I speak of first sale, I'm talking about the way stores can
> resell *physical
> books* overseas:

'First sale', by whatever name you refer to it, relates to the rights of the consumer. Bookshops, physical or virtual, are not consumers but middlemen.


>   Amazon buys the physical book from its distributor, then
> can turn around and sell it to someone overseas. They can do that because
> of first sale: once they buy the copy from the distributor, it's theirs.
>    

That is so wrong that I hardly know how to explain to you. If your 
reference is to traditional publishing then the system is quite complex, 
but the essential point is the store remains a middleman and does not 
have the rights of a consumer under variations of second hand selling. 
They can sell a new book to anyone who is within the regions permitted 
in the case of that particular book; if the edition has worldwide rights 
then it may be sold anywhere. However your suggestion has another flaw. 
Mainstream brick and mortar stores serve a local populace and rarely 
sell abroad, even today, and regional limitations were generally handled 
via distribution systems.

If you refer to PoD production it is essentially a system where the book 
copy is printed at the time of sale and, outside Amazon and maybe B&N, 
the book is generally drop-shipped from the printer to the consumer, 
thus not even being in the possession of the bookseller, and maybe not 
even of the publisher or author. I would also point out to you that 
Amazon has e-stores in several countries, primarily the US and UK, and 
there are indeed restrictions applied where regional limitations are 
being imposed, for whatever reason, but often on copyright requirements.

> They can keep it in their warehouse, sell it to someone in America, sell it
> to someone overseas, bury it in a time capsule for a hundred years, light
> it on fire and dance around it naked, whatever they want to with it. 17 USC
> § 109<http://www.law.cornell.edu/uscode/text/17/109>, emphasis mine:
> "Notwithstanding the provisions of section 106 (3), the owner of a
> particular copy or phonorecord lawfully made under this title, or any
> person authorized by such owner, is entitled, without the authority of the
> copyright owner, *to sell or otherwise dispose of* the possession of that
> copy or phonorecord."
>    

Repeat after me "a phonorecord is not a book".  There are important 
differences in usage and in production and in creation and in relations 
between the systems of copying and the original. Sound creations have 
been in popular digital forms for far longer than word creations, and 
there is no comparable sound copy to the printed book. Under IP and 
under copyright alone the variations are immense. In addition books have 
had protection under copyright for centuries more than sound 
reproductions. Sound protection is only about 150 years old. And that 
first referred only to sheet music.

It is in fact very rare for a bookshop to own any book on its shelves.

> When they sell e-books, they can't do that because they are not buying and
> reselling a copy of something, they are acting as the publisher's agent in
> providing a storefront to sell it. They *are* a party to the original
> agreement between author and publisher, so they can't sell outside of those
> agreements, and first sale doesn't apply.
>
> Which is what pnh said, and I agreed with.
>    

This claim, and the claim of 'mess', is predicated on the idea that 
regional restriction in publishing is unusual, new or a restrictive 
practice. Yet licence restriction by region predates the Berne 
convention, and was gleefully twisted by pirate publishers in many 
countries over the centuries, and in some cases until a decade or two 
ago. There are in fact a host of very good reasons for limited licences, 
and the system is of greatest benefit to the author and smaller 
publisher. Far from being a restrictive practice it is a very practical 
and realistic way of optimal publishing. The details will depend on the 
individual book, time , place and preferences of copyright owner and 
licencees.

It is extraordinarily simplistic to assume that world rights are the 
best solution in all cases to any copyright product. And the idea that 
anyone who is not the rights owner has the entitlement to make that 
decision undermines the existence of the copyright system. Your further 
claim, whether identical with Hayden's or not, that every etailer is the 
same in concept or practical relationship with publishers or authors is 
not realisitic.

Ebooks are sold in a number of different ways, and in a number of 
different formats. Some are tied to reading devices, but these operate 
under two separate systems. Amazon and Apple, under the appropriate 
plans, make a sale of the book, according to the terms of the contract 
with its publisher, but then, under a separate contract connected to the 
device and their own sales platform, tie the digital copy to the device 
and the company server by various forms of DRM. And I am not sure how 
they are 'party' to the agreement between author and publisher; they are 
neither named nor signatory in any such contract I know of. Their 
contract to act as seller to consumers is with the publisher; it is for 
the publisher to ensure that agreement is in keeping with its licence 
from the rights owner.

Joseph Harris



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