I’ve seen a number of articles recently about schemes to sell “used” e-books, mostly spurred by Amazon’s recent patent on such a process. I’ve seen lots of enthusiasm about this, but I think it’s misplaced. There are two main points that I’d like to see made more prominently in this discussion:

First: This can’t work without intrusive DRM, or worse

Any scheme that allows reselling “used” e-books has to accomplish the fact of deprivation: the seller, in exchange for money, is deprived of the ability to make use of that book. This is obvious in the physical world (if you sell it, you don’t have it anymore) but less so in the digital world. Backups, however, are ubiquitous. Deletions can be undeleted. Files can be moved to USB sticks. Whole libraries can be uploaded to e-readers that are never Internet-accessible, and so never receive revocation commands. In other words, there are scenarios where you can buy an e-book, sell it as “used” and still have a copy. In such a case, one could buy an e-book the instant it is released, take a moment to back it up so as to be able to re-read it at leisure, and then turn around and sell it “used” before half the market has even woken up. (Heck, you can automate it so that you’ve bought it, stored it, and resold it before you’ve woken up.) Unless of course Amazon agrees to a blackout period on “used” e-book sales, and I wonder what concessions they’ll squeeze out of publishers for that…

If there is any doubt at all about the ability to achieve complete deprivation, then there must also be a tracking mechanism whereby some central authority must give its blessing to each sale after verifying that you have the right to make it.

Without these two components (deprivation and tracking), everyone who buys an ebook copy of, say, John Scalzi’s Redshirts becomes a de facto printer of John Scalzi’s Redshirts. A printer with unlimited ability to produce an identical copy in direct competition with both the rightful publisher, and everyone else who has ever bought a digital copy. With no costs beyond the initial purchase, then the first person to try it need only charge pennies less. But the next person will charge pennies less than that, and so on. It does not take a genius to realize that this will eventually drive the effective price of Redshirts to some pre-defined minimum below which the mediating authority considers their used e-book scheme to be no longer worth their time and database resources. Even if it actually takes some time and energy to produce these copies, these are computers: any process can be automated. Look to the in-game economy of Kingdom of Loathing to see this in action.

The “sell N copies after buying 1” case is clearly the more disastrous than the first case. In order to ensure that this rush to the bottom does not happen, a central repository must be set up to track purchases from beginning to end. Someone needs to keep track of every original purchase, and needs to check at the time of each resale whether you have purchased that book. It needs to handle cases where you bought more than one copy (perhaps on sale, to resell after the sale period?) or were given an e-book as a gift (gee… another 500-page political screed… thanks, Aunt Agatha). If you buy an e-book through an indie bookstore, you can’t sell it through Amazon’s market unless Amazon gives them access to their tracking, and vice versa; people who want to ever have the option of selling their “used” e-books on Amazon will have to buy them from Amazon in the first place. (Oh no, says Amazon, don’t throw me in that brier patch…)

Not too long ago, everyone praised Tor to the skies for selling their e-books without DRM. Why? Amazon’s DRM up to that point locked you into a platform, and gave them the ability to yank books from your devices. It was argued, persuasively, that under such a condition, you did not really “own” the books you bought. But even their DRM was not so draconian as to require phoning home each time you wanted read a book.

Guess what kind of DRM scheme this requires.

Yup, the only way to ensure that someone can’t read a book after purportedly selling their last copy is to make sure that a) their device checks “has this book been sold on?” before letting you read or continue reading, and b) can only be read on devices that perform that check. (Oh no, says Amazon, don’t throw me in that brier patch…) If the scheme fails on either point, then we’re back at the situation where you can buy an ebook the moment it’s released and have your unread copy for sale, “used” and at a lower price, ten seconds later. [1] To be really sure, it would need a continually-open connection: otherwise I could buy the e-book, load it up, let it do the check once, then turn off my wireless connection and leave it off while I finish reading, having already resold it “used” while the market was still hot.

Amazon’s specific patent potentially goes even further than that. In the described scheme, everything is stored server-side, and then is accessed on an as-needed basis by download or streaming. If they go the download route, they will need to use DRM as described above. But they may also choose the streaming route, which for an e-book could mean everything from download to an encrypted local cache to downloading page-by-page. In which case, in exchange for the ability to sell a book, you actually wind up with less ownership of it than you ever had before.

This to me feels like a very clever answer to Tor. Tor was roundly praised, and rightly so, for going DRM-free, allowing you the reader to use whatever device you like, and trusting you to not be pirates while acknowledging some level of informal sharing as a general social good. But DRM-free downloads aren’t amenable to formal resale (at least, not without the fun situations outlined above), which allows a mendacious e-book seller to turn it around and paint Tor’s move as an effort to kill your right to sell your used e-books. (Oh no, says Amazon…)

Second: The perfect-copy nature of e-books changes the social bargain of copyright

Books are impermanent objects. Readers dog-ear pages, and tear dust jackets, and spill coffee on them. Peoples’ names are written in the inside covers, and people use highlighter markers and jot notes in the margins. Paperback books turn yellow over time, because they’re generally printed on cheap paper, and the cost savings mostly passed on. Books get left in airports. They get incinerated when your house burns down. All of these things reduce or eliminate the value of a purchased book. Books must also be physically transferred, incurring costs in delivery and sometimes storage space.

Copyright is a grand bargain, remember. Used physical book sales are on balance a good bargain for society: authors and publishers lose out on a paycheck for their work, sure, which slightly lessens their ability to produce new work, but in exchange there’s an incentive to preserve out-of-print books. For in-print books, the items in trade are frequently degraded and less-accessible, and thus represent a lesser product that additionally bears some slight social stigma (think about giving one as a gift, for example, when new copies are available). The used book market has issues of quality, rarity, and space to be managed: it’s hard and financially risky work that often goes unrecognized, fulfilling not only a market niche but a positive social need.

E-books have none of these flaws[2]. As digital objects, they can be (and nearly always are) backed up in a way that allows quick and easy reversion to original state (if not better, given that errata can be fixed). Digital highlighting and other desecrations are stored in another file entirely, which would be omitted, leaving the file in original condition. Even if the reader does not restore their file from backup, it is highly likely that the intermediary would dispense with the step of requiring the upload of the file embodying the e-book to be “sold” as a ridiculous waste of bandwidth. This would also prevent someone maliciously altering a file, such as to deploy malware or to delete the ending and add the line, “Rocks fell, everyone died.” or “To find out what happens next, send me a dollar”.

Selling a “used” ebook is actually the assertion of a right to produce and sell one royalty-free electronic copy of a book based on the combination of a previous license and the (somewhat verifiable, through onerous methods) promise to no longer exercise that license. Even Amazon’s version, described as shuffling bits around a central server, is in practice highly unlikely to actually involve thousands of copies of the same file being moved from directory to directory. Instead, they’ll stop producing perfect copies of the file on demand for one person, and instead produce perfect copies on demand for someone else.

This means that, unlike in the physical space, “used” e-books directly compete with “new” e-books on nothing but price. Not quality, and almost certainly not convenience: Amazon has a much better bargaining position against individuals reselling through Amazon.com than it has against Big Six publishers, which means it will almost certainly wind up taking a larger slice of the resale pie than the original sale pie, which incentivizes Amazon to make it very, very easy to get the “used” version.

Competing with the author on such equal terms, with much less of the risk associated with trading in physical used books, represents a pretty major change in the social bargain that is copyright. It might be a reasonable change. But if so, it ought to be debated in those terms and legislated as a deliberate alteration (with the attendant opportunity to toss the original authors a new bone in compensation, or possibly as an explicit response to recent increases in copyright term), not decided by fiat by Amazon.

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[1] Actually, if you don’t care about getting to read a book, nothing prevents you doing this at all. And if you don’t think that there’s an author out there willing to game this system by buying up ten thousand ebook copies of their own book on release day, and then selling their NY Times Bestseller “used” at a penny difference over the next year, in a context where to end customers the only difference is the price, then I have a network bridge I’d like to sell you.

[2] Or charms, if you prefer. I refer you to Nero Wolfe’s behavior in Gambit (among my favorite scenes ever):

There’s a fireplace in the front room, but it’s never lit because he hates open fires. He says they stultify mental processes. But it’s lit now because he’s using it. He’s seated in front of it, on a chair too small for him, tearing sheets out of a book and burning them. The book is the new edition, the third edition, of Webster’s New International Dictionary, Unabridged, published by the G. & C. Merriam Company of Springfield, Massachusetts. He considers it subversive because it threatens the integrity of the English language. In the past week he has given me a thousand examples of its crimes.