The right to resell ebooks — major case looms in the Netherlands

A major lawsuit is about to take place in the Netherlands, dragging the issue of the resale of digital media back into European courts.

On Tuesday this week, a local startup called Tom Kabinet opened the virtual doors on its secondhand ebook bookstore. At the moment, it is generally accepted that ebooks cannot be resold, as is the case with music, movies and other digital media.

However, Tom Kabinet is pointing to a 2012 ruling by Europe’s top court, the Court of Justice of the European Union, in the case of UsedSoft v Oracle. That case was about reselling licenses for downloadable software, and the court ruled that – even when the software license explicitly forbids resale – the buyer should have the right to resell that licence, just as they would be allowed to resell a boxed software copy.

“The publishers have asked us to stop operating with a deadline of today at 2pm [5am PT],” Tom Kabinet co-founder Laurens van Hoorn told me on Friday. “We’ve let them know that we won’t put the site on black – they basically asked us to take the site offline but we won’t do that.”

“We expect that if they don’t shut their activities down, the next step will probably be a court case in the very short term,” Martijn David, the secretary general of the Dutch Publishers Association (NUV) told me.

Honor system

The NUV sees Tom Kabinet as aiding piracy – it says it is easy for people to illegally download ebooks then sell them for profit. Tom Kabinet says it wants to fight piracy, and the publishers should be working with it to do so.

“I think we’re on the same side of the table,” van Hoorn said. “Both parties are interested in fighting the illegal use of ebooks. We’re both opposed to piracy of ebooks and I think if we worked together we would make a much stronger case.”

Van Hoorn explained that Tom Kabinet tracks what is uploaded and adds a “watermark” to any publication passing through its systems, making it impossible for someone to sell an ebook multiple times.

However, there’s a flaw in the system that could hurt the bookstore’s defense. One of the key provisions of the UsedSoft ruling was that, in order for the transaction to be legal, the seller must “make the copy downloaded onto his own computer unusable at the time of resale.”

Tom Kabinet has no way of ensuring that this has happened, so it is easily possible for someone to both keep and sell the ebooks they’ve bought. The company can only run an honor system, asking people to confirm that they purchased the ebook legally and that they have deleted their own copy.

“If we could work together with the publishers, we would be even better able to judge if the content that is being offered to us is offered by the legal holder,” van Hoorn said. “It would be great if we could work together with the publishers to make the ebook market more healthy for them and for the consumer.

“In the end it would be the best situation [where] if you want to read the latest book you need to buy it new from the publisher, and if you can wait you can buy it from Tom Kabinet as a secondhand ebook for a little bit lower price. That’s the normal way of things and that’s the way it should be.”

“No approach”

However, David said Tom Kabinet only approached the publishers for the first time on Tuesday, as it went live.

“If you want to work with publishers, why start with illegal content?” David asked. “Why not start with, ‘Can we work together and join forces?’ … I haven’t heard of any publisher who has been approached a reasonable amount of time before they started operating.”

David’s belief is that the UsedSoft precedent doesn’t apply here because it was specific to software “and it doesn’t stretch out to any digital product” – in this regard, he pointed to a ruling last year in the German regional court at Bielefeld, which established just that. What’s more, he said he couldn’t see how any website could check that uploaded ebooks are legitimate, and that the whole idea was “market disturbance” that could harm the ebook trade.

“The market is developing and the last thing you should do is kill it,” David claimed. “Certainly in the Netherlands it is small but growing, and these kinds of initiatives don’t make anything better.”

David also complained that authors weren’t getting anything out of second or third sales. However, van Hoorn said the firm does have a “Friends of Tom” program for authors and publishers through which authors can get a “donation for work sold through TK.”

This is a very live issue over in the U.S. these days, with Congress soliciting opinions from the publishing and tech industries. Although most normal people probably expect to have the same rights with virtual goods as they do with physical books and CDs, that’s not actually the case – and in Europe, the upcoming Tom Kabinet v NUV case may finally help clear up the confusion for once and for all.