HOT NEWS: Amsterdam Court of Appeal gives Tom Kabinet three days to shut down

Here's some fresh news from Míchel Olmedo Cuevas, who has been following this development closely:

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. 

The complete ruling can be read here (in Dutch). Tom Kabinet's website is here.

Chinese sue Apple over pirated e-books

As reported by Chinese financial magazine Caixin, a group of nine Chinese authors (amongst whom are popular 29-year-old blogger and social critic Han Han  and author Li Chengpeng) has sued Apple before the Beijing's No. 2 Intermediate People's Court for 11.9 million yuan (approx. $1.9 million), in compensation for allegedly providing 37copyright-infringing books for download through its online store.
The consortium of writers acts under the mantle of the China Written Works Copyright Society (CWWCS), a lobby group which has engaged in similar disputes also with Baidu and Google (see this Blog here) over their online products.
According to CWWCS's spookesman, "the download number of one best-selling book is much as one million, which creates about one billion dollars in losses for each writer." 
Controversy between Chinese authors and Apple over alleged sale of copyright-infringing material is not a novelty. In August 2011, Zhu Jintai, the author of a popular paranormal fiction novel, joined several publishing agencies and media organisations in a lawsuit against Apple, due to its App Store's alleged infringement of IPRs. This, as reported by the Global Times, was the first time that an individual Chinese author took action against the US corporation. Eventually, Apple removed his novel from its online store, but the lawsuit is still pending.
Then, in September 2011, six writers sued Apple over copyright infringement of 23 books, seeking 6.5 million yuan (approx. $1 million) in compensation.  
As the number of Chinese Internet users is constantly increasing (it reached 485 million in June 2011), so is the number of people who download e-books (more than 121 million in 2010). Along with such a flourishing market, economic harm posed by piracy cannot be underestimated. 
Zhang Hongbo, CWWCS's deputy director general, suggests Chinese authorities become involved in helping domestic copyright owners protect their rights overseas. "US authorities always press on China over IPR protection, and now it's time for Chinese authorities to up the pressure on them" he said.

"I want my e-books free"

It's rare for this blogger to draw on the materials provided by other bloggers, but this is an exceptional case. In the first place, I have been either invited or provoked to do so by fellow blogger, legal scholar and gentleman C. E. Petit of Scrivener's Error. Secondly, what follows is truly amusing. Let C.E. take up the story from here:

"At many of the local bars in Campustown, Thursday is karaoke night. With special thanks to cyclobenzaprine, I offer the following commentary on the public reaction to the Amazon/Macmillan kerfluffle, aka AmazonFail 3.21 [see eg here, here and here] — and in particular, to those who took Amazon's side because e-books should never cost more than $9.99:

Karaoke -- sung, slightly off-key, to the tune of Dire Straits' "Money for Nothing"

[sotto voce] I want my, I want my e-books free

I want my, I want my e-books free

I want my, I want my e-books free

[air-guitar solo]

Now look at them yoyos

That's the way they do it

They read my novel on their Kindles — free!

That ain't stealin'?

That's the way they do it

Info ain't for nothin' and e-books are free

Now that ain't stealin'?

That's the way they do it

Lemme tell ya them guys ain't dumb

Maybe get a blister on a mouse-wheel finger

Maybe get papercuts on a thumb

They gotta work in Microsoft Windows

Custom software deliveries

They wanna upload your bestsellers

They wanna download e-books free

That little hacker

With the file-share startup

No buddy his school don't care

That little hacker

Got his own jet airplane

That little hacker

He's a millionaire

They gotta work in Microsoft Windows

Custom software deliveries

They wanna upload your bestsellers

They wanna download e-books free

I shoulda learned to burn some software

I gotta learn to like them bums

Look at that mama!

She got it stickin' in the scanner, man

She'll share some fun

And he's searchin',

What's that? Indexin' noises?

Bangin' on the keyboard like a chimpanzee

That ain't stealin'?

That's the way they do it

Info for nothin' and e-books for free

They gotta work in Microsoft Windows

Custom software deliveries

They wanna upload your bestsellers

They wanna download e-books free

[air-guitar solo]

I want my e-books free

I want my e-books free

I want my e-books free

That ain't stealin'?

That's the way they do it

Info ain't for nothin'; e-books for free

[sotto voce] I want my, I want my e-books free

I want my, I want my e-books free

I want my, I want my e-books free

All trademarks property of their respective owners. Yeah, right.

E-books – state of the nation

The 1709 Blog is is pleased to offer readers the thoughts of Sam Ross, who has been considering the current state of play regarding e-books. Says Sam:

"Although technology has historically boosted the paper-book industry with online ordering, used books being 'eBayed', and print-on demand technology, might bookshelves soon become firewood and books museum artefacts due to the rise of the e-book?

By the time copyright law was enacted in 1709, the printing press had been around for nearly 300 years. 300 years later in 2009, commentators are suggesting that the "iPod moment" for e-books is almost upon us. Amazon's Kindle DX (so far only released in the US) features a 9.7 inch screen, 3G Wi-Fi, a 16-shade display, a 3,500 book capacity, and -- crucially -- it has won praise from Oprah Winfrey. The Kindle DX is supposedly paving the way for a billion dollar e-book industry in the next few years (still not anything on Oprah's net worth, but not bad…).

In a generation that is addicted to free content, out-of-copyright "free-e-book" files (e.g. Dickens' Great Expectations) offered by Project Gutenberg have proved popular in past years, and there is now even an iPhone application, Stanza, for reading these files. However, in-copyright e-books have lagged way behind (just 30,000 Sony Reader devices had been sold in the UK as of January 2009 with only 75,000 e-books downloaded). Speculation is, however, that with exciting new devices like the Kindle DX in place, which offer better screen resolution, portability and design/feel, it is only a question of time until the e-book phenomenon grips the masses. The surprising catalyst could be the new hardware proving an unlikely saviour for the ailing newspaper industry (a subscription-based deal has already been struck in the US between Kindle and the Wall Street Journal, and Rupert Murdoch is keen for NewsCorp to get involved). But, if the hardware is equivalent to the iPod, do we have the mp3?

An e-book file's current advantage is simple: a great number of works can be stored on just one device, but is this "easy to carry" benefit enough to spawn a revolution in a similar way to the mp3 file? Probably not, because (i) a typical consumer will only carry around two or three books (compared to two or three thousand songs); and (ii) people have a sentimental attachment to books that they certainly did not have towards those pesky CDs. So, how will readers be won over?

Random House has tried to respond to this issue by tempting iPhone users with e-books featuring DVD-like extras such as quizzes, animation and videos. However, arguably what the hardware is really waiting for is a file type which intrinsically belongs on the device and appeals to young readers; not simply the same format supplemented by extras.

The e-book file of the future will, this blogger prophesies, be tailored for the "Twitter" generation and it will represent a new movement in fiction, featuring interactive plotlines; hyperlinks to other content; and user-generated submissions; all features that simply cannot exist on the printed page. Could the e-book file raise tricky copyright issues, such as both readers and authors both grappling for authorship, and multiple individual works subsisting in each evolving and expanding e-book? We will just have to wait and see ..."

Thanks, Sam, for your research and your observations. I suspect we won't have to wait very long to see what happens. The point about sentimental attachment is an interesting one: many children of the 1960s have a remarkable attachment to the vinyl that brought them the Beatles, Stones etc, and loving treasure their old LPs even they have no machinery to play them on, having long ago opted for cassette tapes, followed by CDs and now downloads. By this token, book-lovers will hoard their cherished paper products while (re)reading the text by e-book.