NO, You DON'T Own It

Ever read those fine print licenses to obtain software, etc.—you know, the ones so small and so long that you end up needing reading glasses and headache pills? If so, you know that you, the consumer, have something in common with libraries. You don’t really own your e-books. Not in the USA, anyway, and now probably not in Europe.

I can understand not allowing just anyone/everyone to link indiscriminately to something I’ve bought, ur, licensed, but I can’t reassign it without cost to one person who then has ownership?

Apparently not:

Bill Rosenblatt reports the following:

“This week the Court of Justice of the European Union (CJEU) issued a landmark ruling that digitally downloaded files are not subject to exhaustion (the EU equivalent of first sale in U.S. law). This means that consumers don't have the right to resell (or give away, lend, or rent) ebooks and other digital files. This ruling brings EU law into line with the U.S. precedent established by the Second Circuit Appeals Court in the ReDigi case a year ago.

With this ruling, the CJEU took the expected step of following the opinion that one of its Advocates General, Maciej Szpunar, issued back in September. The CJEU was asked by a Dutch court to answer questions of law that would help it reach a decision in a case involving the online sale of "used" ebooks by Tom Kabinet, a Dutch startup.

The questions referred to the CJEU boiled down to one issue: does making a file available by digital download implicate the right of distribution or not? The principle of exhaustion only applies to the right of distribution, so if downloading doesn't implicate distribution, then exhaustion doesn't apply, and the copyright owner can control whether the user has the right to alienate downloaded files. The court ruled that distribution doesn't apply, that the only right implicated in digital downloads is the right of communication to the public. In fact, the CJEU held that distribution only applies to physical objects.

The court also held that making a file available for download through a specific technical mechanism counts as communication to the public even if no one downloads the file. In other words, if Tom Kabinet makes ebooks available on its website, then it still could be infringing copyrights even if no one buys them (or more accurately, spends "points" on them).

The CJEU reached the same conclusion as the U.S. Second Circuit did almost exactly a year ago regarding ReDigi, the digital music resale startup. Judge Pierre Leval found that reselling a digital file involves making a copy of the file rather than sending that file to the buyer. Advocate General Szpunar reached the same result in his opinion.

This brings EU law regarding digital exhaustion/first sale into line with the prevailing precedent in the States... except for one thing. Along the way to reaching its decision, the CJEU also ruled (relying on its own precedent) that making a digital file available for downloading counts as communication to the public even if no one downloads it, as long as the file is made available by "specific technical means, different from those previously used" or is made available to a different set of people from the ones to whom the copyright owner originally sent the files. In U.S. law, the question of whether "making available" implicates any of the rights in the copyright bundle is not settled, although the U.S. Copyright Office took the position in 2016 that it implicates the right of distribution.”

Another loss for readers.