We traditionalists certainly like to believe that ebooks should be thought of as different from print books. But we seem to be losing the war. Despite the patent nonsense of so doing, some publishers will accept a return of an ebook! Heck, it’s bad enough that we let anybody return a regular book for full credit if they don’t like it — the unscrupulous bibliomaniac could almost never pay for a book; reading each one carefully and taking it back for credit. Books get returned by bookstores because they can’t be sold. But even ones which do get sold can get returned too no matter how crazy the reason. Just hang onto your receipt. Seems we publishers just want people to love us, even if this results in our being made miserable.

So because we’ve been dumb enough not to put a stop to the returns fiasco we follow the logic of our folly and accept returns of ebooks too. What gets returned? Nothing. All that happens is we pay the reader back the money we made from the sale, and no doubt incur some extra cost in “deleting” the file from their “library” if indeed we can. Dumb and dumber.

The ebook can now be seen as nothing more than a different format of a book, in the same way that paperback, hardback, audiobook are different formats, and of course we want to have all formats of our books behave in the same way so we can apply the same rules to all of them. Is this is because we are doubtful of our ability to keep two different sets of rules in our brains at the same time? We are all aware of the fact that the customer doesn’t actually “own” an ebook. They just pay for access to it. You can’t sell (or give away) an ebook after you’ve done with it as you can with that ratty paperback someone tore the front cover off before you even bought it. There’s some fairly tortuous method of lending a Kindle book to another Kindle owner — I’ve done it, but I can’t really remember how. After a certain time the book comes back to you and is no longer available to the lendee.

The Misfortune of Knowing asks “Should Congress allow the sale of ‘used’ e-books?“, an article about the Second Circuit’s opinion in Capitol Records, LLC. v. ReDigi. The court has determined that reselling a music file (and by extension an ebook) is not something covered by the fair use exemption in U.S. Copyright law, but an infringement of copyright. Making a new copy of a digital file is a copyright infringement. Arguing that the copyright law is out-of-date because it was written before on-line file sharing had taken off, is irrelevant. Making unauthorized copies is wrong: it deprives the author and the publisher of their reward: that’s why it’s called copyright.

The trouble with second-hand sales of ebooks is that a second-hand ebook is basically identical to a first-sale copy. If you buy a second-hand print book it isn’t identical to a new copy, though of course lots and lots of them are pretty much indistinguishable — and command a higher price in consequence. But you know that someone’s thumbprint may be there lurking under your thumb as you hold the book open, even if you are not forced to see their reaction to the text by way of annotations, underlinings and turned-over corners. If ebooks were allowed to be sold second-hand, publishers would stop doing them, because potentially you could get to a position where the publisher makes a single sale at full price to a dealer who then offers the identical ebook at half price, second-hand, to everyone else who might have potentially bought the book from the publisher. Be it noted that a second-hand sale not only hurts the publisher, it means the author gets no royalty too.

Sounds to me that rather than trying to get the copyright law rewritten to cure this problem, we should just accept what is the current reality of our sale of ebooks: that they are actually rentals. Just grasp the nettle and sell access on a rental basis. So your ebook costs $14.95 — well that’ll get you access for one year, two years, whatever. Gets rid of the returns problem too. Just try getting your fee back from the Apple store on the basis of your deciding not to watch that movie after you rented it (or even worse, that you watched it and just didn’t like it). Adding the widely hated DRM (digital rights management software) to the file can cause it to “disappear” after the rental period has expired. Yes, yes, I know clever people can defeat DRM, but so too can “clever” people defeat the cash register protections which guarantee a print book’s sales integrity. People have been known to walk out with an unpaid for book in their coat pocket. Believe it or not! Just because thieves exist we are not compelled to offer our books for free.

Here for the enthusiast is TeleRead‘s piece the ReDigi judgement.