We used to know what a book was. It was words on paper, bound together into a primitive manually-operated reading device. We easily comprehended the components: copyrightable content plus the delivery mechanism. These days, our simple definition blurs. Is a “book” merely the content? Or is an “e-book” also a thing in and of itself, just like the paper version it replaces? Is it both the memory of the words and the ghost of the paper? What do I sell you when you buy my ebook? To paraphrase my own poem, does the poetry remain when the poem is removed?
This becomes interesting when you consider resale rights. Should you have the right to resell an ebook? If so, is it still “new” because it remains perfect or it used because, after all, it’s been used? Should the publisher inflate the original price because, after all, a new book is worth more? If I let you (the buyer) resell it, and you price it below my price to you, are you competing with my own sales with a product identical in every way? Are you undercutting the bookstores like Amazon and Barnes and Noble that I rely on for my livelihood? Dare I risk their wrath? Shoot, I don’t sell my own paper books to the public at a discount just to help protect their profit. Should I, therefore, place a restrictive covenant on the price you may resell it for?
Conversely, if the book becomes hot after you buy it, (maybe Angelina Jolie makes a movie based upon it) is it reasonable for you to make the profit on your copy because, after all, you bought it and own it?
So far, publishers have decided that you only get to buy my ebook, you don’t get to resell it. Nor can you copy it, lend it, duplicate it or otherwise profit from it. After all, the book was priced comparable to (or cheaper than) than the printed version. That price was based on a one time use. If you want to lend it out (as a library, for example) those publishers will sell you a license to do so with very strict rules. The book vanishes after so many check outs. The library is no longer buying a book, it’s buying a temporary right to use the content. The library has become a renter instead of an owner. Libraries don’t like that.
On the other hand, as an author, I did not intend for millions of people to gain access to my immortal words for free just because someone paid ten bucks for one ebook. On several occasions, I’ve had to take action against pirates who scanned one of my books, converted it to PDF and made it available as free or cheap downloads. They paid for one copy of the book, but threatened my entire livelihood. That did not seem fair either.
I’ve been helping Colorado Independent Publishers Association put together a deal with a couple of large libraries (including Douglas County Libraries of Colorado and Red Rocks Community College) to buy e books for lending. Our model is revolutionary because we’re not selling them a license to loan the book, we’re selling them an actual ebook with the right to lend that out to one patron at a time. We had a very pleasant meeting today and the resale issue arose. I suspect that the head of the library district and I could spend a delightful evening arguing this issue back and forth because we see it from opposite ends of the shotgun. My first instinct is that no, they can’t resell the ebook they buy from me. His first instinct is that of course they can.
Because whatever we do will set some precedents in the industry, we want to be careful. But we don’t want to get bogged down either. We both want to be fair, if only we can define “fair.”
Here’s my current thinking. Just like with real estate, any sale includes a particular bundle of rights. The right to resell is one of the rights that might be included in the bundle, like water rights or mineral rights or the right to possession. Most homeowners in Colorado don’t own the mineral rights to their property. Most city and suburban properties don’t include water rights. Sometimes you buy a property with covenants and restrictions; you may or may not own development rights, air space rights or the right to build a new barn. As long as it’s spelled out in the deed, you don’t risk changing the last four hundred years of property rights law, which is really what we’re worried about.
I suspect our solution is to agree upon exactly what bundle of rights are included in the e book sales we contemplate, and agree that we aren’t in a position to define those rights for the entire world quite yet.
Publishers Weekly wrote a nice article about our project here.