Earlier today, the Amsterdam Court of Appeal delivered a ruling stating that, as Tom Kabinet provided a platform where both,legal and illegal used e-books could be resold, the website has to close within the next three days or face a fine of €1,000 a day, up to a maximum of €300,000.
This decision follows the appeal presented by Nederlands Uitgeversverbond (NUV) and Groep Algemene Uitgevers (GAU), two Dutch collective management societies representing the interests of the literary industry, in which they asked for an immediate closure of the site. At first instance, Judge Pompe decided that the activity carried out by Tom Kabinet was lawful and should be allowed to continue. An analysis on the case by this author can be found here.
At this stage the closure order can still be lifted if Tom Kabinet finds a way to ensure that their selling systems excludes illegally downloaded files. This should prove to be difficult, given that there are legitimate suppliers that do not provide their e-books with DRM (Digital Rights Management), making them very difficult to track. The current Tom Kabinet system provides the sold files with a watermark, so they cannot be sold more than once at a time and only by the last buyer, a system that Judge Pompe considered to be compliant with the current legal framework.
Significantly, the court avoided deciding whether exhaustion doctrine should be finally applied to e-books, and left the question for future proceedings, where the competent court could refer questions to the CJEU, and ask the highest instance if exhaustion doctrine should apply to e-books.
At this instance, the only goal for NUV and GAU was to obtain an injunctive relief while they wait for the final ruling, so there is still a chance for Tom Kabinet to resume their activities after the final ruling is delivered.