I first heard about this story via Mike Shatzkin in a lengthy piece at his Idea Logical blog, then in a shorter piece by Mike Masnick at TechDirt. Since then, I’ve seen it crop up in a number of different places, and it’s just too beguiling an issue not to discuss.

An ethicist at the New York Times, Randy Cohen, has opened a can of worms and dumped them all over e-books with a column in which he suggests it is ethically fine to download an electronic copy of a book (in this case, a book that was not yet commercially available as an e-book) when you’ve purchased the printed copy.

Cohen compares it to the practice of copying a CD to your iPod, saying:

Buying a book or a piece of music should be regarded as a license to enjoy it on any platform. Sadly, the anachronistic conventions of bookselling and copyright law lag the technology. Thus you’ve violated the publishing company’s legal right to control the distribution of its intellectual property, but you’ve done no harm or so little as to meet my threshold of acceptability.

Not surprisingly, many in the publishing industry have objected. Richard Curtis at E-Reads calls Randy Cohen “E-Book Enemy #1” and accuses him of “[condoning] ripping off e-books”.

Megan Halpern at Melville House Publishing writes:

As many others have pointed out since Sunday morning, buying a book does not give you license to the use of that material.  It simply makes you the owner of a beautiful hardcover that you can add to your shelves and read for a lifetime, whether or not your Kindle is charged.

Space Shifting and Music

I’m not a lawyer, but I’ve read a lot about this issue.

At issue here is the legal concept of “space shifting”, as originally laid out in the case that laid the groundwork for the coming of the iPod: RIAA vs. Diamond Multimedia. The RIAA sued over Diamond’s Rio MP3 player, and the court held that consumers have the right to “space-shift” media that they own.

In an important decision, a Federal appeals court has partially answered that question by declaring that just as television viewers have the right to time-shift, computer users have the right to “space-shift” — they can make additional copies of digital files they have obtained lawfully in order to listen to them in different places.

If you own a Metallica CD, you can legally rip it to MP3 and put it on every computer and mp3 player you own, and Metallica can’t do a thing about it.

Space Shifting and Books

If we expand the space-shifting right to other media, then yes, buying a book does give you license to the use of that material. If, that is, you do the conversion yourself.

Courts have held that there is a legal difference between ripping a CD to your hard drive and downloading or otherwise making use of unauthorized copies of the music on that CD even if you own it—that’s why Michael Robertson’s MP3.com music streaming service (which permitted people to verify they owned a CD by putting that CD in their own CD-ROM drive, then stream the music they owned from copies of the CD on Robertson’s MP3.com server) got shut down.

So legally, downloading an illicit e-copy of a book that you already own would still be a no-no. But that’s not the question Randy Cohen was addressing.

Legality vs. Ethics

Consider this hypothetical scenario: you buy a CD, but your CD-ROM drive is on the blink and you can’t rip it. So you download the music from peer-to-peer. Granted, it’s illegal, but have you done anything ethically wrong?

Whether you ripped legally or downloaded illegally, the music from the CD you own ends up in digital form on your hard drive. No money has changed hands to get you the digital copy—in fact, you’ve used up some of that “pirate” uploader’s monthly bandwidth allotment, which could cost him money if he’s charged for it.

The difference with books is that, traditionally, scanning a paper book into an e-book has taken a lot of time and effort. You can’t just “rip” an analog paper book the way you can a music CD that already has everything digitally encoded. You have to scan it, then proof it, then format it.

So to get a legal e-book copy of a paper book you already own, you generally have to pay—either in effort (to scan it) or in money (to buy it).

Generally speaking, the only ones who’ve been willing to pay in effort have been the “pirates,” because they get the dividend of egoboo from releasing their illicit (well, licit for their personal use alone, illicit for everyone else’s) e-book into the wild. The time it would take to scan, OCR, and proof a book is more valuable to the average consumer than the monetary cost of buying the e-book from an e-book store, assuming it’s available.

And if you want an e-copy of a book that you own that’s not available for money (for example, the Harry Potter series, or the Stephen King book Cohen’s original inquirer mentioned), you can put in the effort to scan it yourself, or you can take the illegal (but possibly still ethical—after all, you have already paid for the book) shortcut.

And that’s what has the publishing industry up in arms. Because they’ve gotten used to people paying for paper and electronic formats of their books separately, publishers tend to believe that the only way to get a separate electronic format of a printed book should be to pay for it.


This attitude isn’t exactly a new thing, either. Back in 2004, on my own blog, I wrote about the “failure” of Stephen King’s self-e-pub project, The Plant. King insisted that he had to receive payment for at least 75% of downloads, and had to be paid for each separate download, even if a consumer simply wanted a copy in multiple formats for reading both on his computer and his PDA.

In a phenomenal display of missing the entire point of no-overhead digital downloads, King compared the practice of multiple downloading to saying, “Since I have the hardcover, you should give me the paperback free.”

On the other hand, I would compare King’s attitude to saying, “It’s nice that you’ve bought the CD, but you have to buy the MP3s, too.” And as RIAA vs. Diamond Multimedia shows, that simply does not wash.

Disruption on the Horizon

At the moment, owners of paper books who want the e-book version too have the choice of paying for it (if it is available at all), scanning it themselves, or downloading it illegally. Since scanning requires special equipment and more time and effort than most people find worth it (why spend several hours of hard work to get what you could get instantly for $10 instead?), most people are content to buy it (which is good) or download it illegally (which is bad).

And so the publishing industry is, as I said, used to people having to pay separately for e-books—because if you don’t, you’re probably either a pirate uploader or pirate downloader, both of which are illegal. Or if you do, legally, scan books for your own consumption with no intent to distribute to anyone else, there are by and large too few of you for them to worry about right now.

But we’re on the verge of another potentially disruptive evolution in scanning technology that could affect the e-book market in unexpected ways. A college student has created a $300 rapid e-book scanner using discarded wood and a couple of cheap digital cameras. Tokyo researchers have created a very rapid scanner that will scan a book just by riffling through it—and they foresee a future when everybody’s smartphone has one built in.

Someday, it may very well be that the first thing someone does after buying a paper book is take it home and throw it in the scanner, and end up a few minutes later with an e-book that is at least as high-quality as some of the current scanned-but-not-proofed Kindle offerings (and probably better; OCR technology gets better the faster computers get)—and unlike with those, he can correct it as he reads through it.

(I could see an e-book reader application made for this purpose that lets you flip between text and image views like with Distributed Proofing, and then enter corrections with the device’s on-screen keyboard.)

The Fate of Publishing in a Space-Shifting Future

What is the publishing industry going to do then, especially if e-books have taken up a significant portion of the market at that point?

Probably the same thing the music industry is now. Even though the music industry was aghast in the wake of the original RIAA vs. Diamond Multimedia decision—

One veteran copyright lawyer pointed out that if the Audio Home Recording Act does not apply to personal computers, which are important copying devices in the digital age, the law becomes almost meaningless and offers little or no protection to copyright holders, who worry about online music piracy.

“This leaves the record industry in trouble,” said Robert Osterberg, a New York lawyer with Abelman, Frayne & Schwab who specializes in the area of copyright and music. “Unfortunately, they have a wide gap to fill.” Osterberg said he believes the RIAA will seek to lobby Congress to have the law amended to extend to computers and computer peripherals.

—it is still perfectly legal to rip CDs, and for some strange reason digital music is still selling better and better (though CD sales are declining) and the music industry does not seem to be in any danger of dying out (as much as it continues to insist that, no, it really is).

The publishing industry had probably better get ready for the coming storm. I give it five years, ten at most, before home or phone scanning technology becomes ubiquitous. Then suddenly everyone will be making his own e-books.

Heinlein on Commercial Entitlement

In closing, I’m reminded of a Robert Heinlein quote that has often been cited in this age of digital turbulence:

There has grown up in the minds of certain groups in this country the notion that because a man or corporation has made a profit out of the public for a number of years, the government and the courts are charged with the duty of guaranteeing such profit in the future, even in the face of changing circumstances and contrary to public interest. This strange doctrine is not supported by statute or common law. Neither individuals nor corporations have any right to come into court and ask that the clock of history be stopped, or turned back.

The publishing industry might do well to keep that in mind as the era of the personal scanner approaches.


  1. Format-shifting is explicitly legal in several countries.
    And personal-use scan&OCR conversion is going to be pretty hard to criminalize, much less actually prosecute.
    I’m thinking the last thing the industry wants to do, in the wake of their price hike-and-fix ploy is publicize the ready availability of unauthorized ebook editions online.
    Might give folks ideas…
    That way lies Napsterization.

  2. While I don’t have anything to add to your article, I’d just like to say that I’m glad TeleRead exists because you have the merit of providing cogent argumentation and a reasoned approach to these questions.
    You are able to stand back and see all sides of the debate, providing articles that are thorough, in-depth and interesting to read. Unlike the knee-jerk reactions and name calling in articles such as the one you link to on ereads.com which is just a rage-filled rant that makes little sense.
    Thank you.

  3. great post.

    i wonder about the legitimacy of corporately owned copyright duration in the wake of the digital millennium copyright act. isn’t it around 120 years, now!? the original idea of copyright was a limitation on the time of monopoly control, seven, then fourteen years, and an anti-trust like attempt to break the booksellers control over information. when the corporately owned congress changed that in 2000, they undermined the delicate balance struck by earlier law. is it legitimate to extend monopoly control of information, artistic and scientific expression, almost indefinitely? is that good for society? if the ethical viability of current copyright is in doubt, doesn’t that contribute to unauthorized copying?

  4. Chris,
    Good writing, as usual. I’m kind of looking forward to the day when a riffle-scanner is available for a reasonable amount. I’d really like to have some of my collections available on my hard drive for reading on the commute, which for me is long (all the way across New Jersey, twice a weekday). I hadn’t known about the RIAA/Diamond ruling on space-shifting explicitly, and am pleased to see that it was nicely broad.

  5. The rampant piracy that existed in the music world was in large part due to the sheer ignorance of music publishers about digital media. Once they put a reasonable strategy in place, the piracy died down to a low roar. Many people I know who wouldn’t have thought twice about illegally downloading songs will now buy them becauses prices are reasonable and DRM has largely disappeared.

    I wonder if it will be the same in the book industry. The Harry Potter series is a great example of publisher/author ignorance, and we all know that it has pushed some people to piracy who wouldn’t otherwise engage in it. The justification ethically is quite simple in that case, as this article and its parent describe.

    The “Apple Agency Pricing Model” is another demonstration of publisher ignorance. Will it lead to more piracy? I would bet yes.

    Don’t even get me started on DRM with ebooks.

  6. As it has always been, the problem is not how many copies I decide to make of a cut of music, or an e-book, that I own… it’s whether or not I share it with another, potential customer. The industry wants each individual to pay for their obtained media, not share it with 10,000 of their closest friends. I consider this a fair idea, and would support any law that endorses it.

    Sharing has become a markedly different animal in the digital age, now that it is so easy to replicate a digital file. We as a society need to come to grips with whether we can allow sharing to continue as it has in the past, or whether we must impose limits on sharing to protect content and potential profitability… in other words, we need to decide if it’s okay to share just because we can, or if we need to act differently out of a sense of fairness to the content owners/creators.

  7. Good Article, Chris.

    It’s funny (in a sad kind of way) that despite insisting that customers *buy* the e-book in addition to the hardcopy, the *quality* of the e-book in many cases is worse. Baen Books being the exception of course (and many of us here are fans of cheap, *professional* e-Books in multiple formats for a single purchase). I recently bought a Kindle version of a 20-year old paperback that I can no longer find on my bookshelf. I was appalled at the OCR mistakes in it – Capital “J” consistently substituted with a lower case “f”, for instance. It is clear that the publisher and Amazon were selling amateur quality scans *as if* there were professional quality paperbacks – and for the same price (if not more).

    A large segment of the publishing industry needs to wake up and enter the digital age before they find themselves out of the market.

  8. This is a great article. And I think you are basically right.

    I do think that there is a potential difference depending on just how much money I’ve dropped on the paper copy. If I’ve bought a book in hardback I’m a lot less guilt-ridden about getting a bootlegged e-version than if all I have is a mass market paperback – and it seems to me that if my only copy is a 2nd hand one I really ought to buy an ecopy. If only to encourage the author (the person who seems to get forgotten about so often in these discussions).

    I’ll go further and touch on the DRM ebook issue. If I’ve bought a DRM crippled ebook I see no reason at all to not actually read a “bootlegged” DRM-free version because its a lot more convenient that jumping through all the DRM hoops. I may get that DRM-less version by running some programs myself or I may avail myself of a copy available somewhere on the web.

  9. Chris, it is part of the issue: It’s specifically because that illegal content can be gotten by the people who did not pay for the book, that makes it an undesirable source of an e-book for those who did pay.

    The courts have generally given the impression that they do not care if an individual obtains copies of books they already own and does not share them. That would suggest the ethics of it is largely irrelevant (a suggestion I support). It is the fact that the illegal source can supply others who did not pay, that is the real issue here.

    So the only important ethics issue is whether it is acceptable to be supplying e-books in a manner other than that intended by the actual content owners, without prior authorization. That’s not an ethics issue to be measured against the consumer… it should be measured against the unauthorized provider.

  10. I work for a large publisher, so I can get a lot of books free. Instead I generally torrent them. Illegal? Yes. Ethical? Also yes IMHO. I save on trees, I save on the environmental impact of a larger house. I break the law, but do no harm to the company, and less harm to humanity.

  11. Is it ethical to download a ebook when you are prevented from buying it due to geographicall restrictions?

    Is is ethical to download a copy of a ebook when you already own a drm crippled copy?

    Is it ethical to download a ebook from a torrent or whatever when that book is no longer available for sale from the publishers?

    I think so

  12. How do libraries factor into this kind of ethical debate?

    When I lived near a good library a few years ago, I’d go there every week and borrow a pile of books. I don’t remember buying any books at all around that time. Was that unethical?

  13. Bruce, we can get copies of the e books we make, but so far we make very very few (and a good percentage of those are public domain). But yes, in a few more years I probably won’t have the dilemma (not that I’m conflicted about it now). 🙂

  14. I’m less unhappy about paying once for a paper book and once again for a digital version than I am with the possibility of having to pay yet again for a new digital version if/when my current software becomes obsolete.

    Almost all of my ebooks are in ereader format. Now that BN is apparently only using ePub, what incentive do they have to keep ereader software current for new reading devices?

    I haven’t seen anything on the Fictionwise site about planning to provide a means to convert any previously purchased ereader books to ePub. So far I’m assuming that publishers are unlikely to allow it.

    Actually, I don’t feel sure that Fictionwise even has any human employees left. There are no notices on their site about the latest mess with books “no longer on sale”, their automated computer system is still busily sending me emails telling me that my pre-ordered ebooks are now available (even when they are not), and the query forms I’ve filled out on the site are so far only getting an automated response.

    All of my ebooks have been obtained legally, but the day I can no longer read them will probably the day I look for a way to fix that, legal or not. That may be a moral slippery slope for me, but I don’t think I’ll be alone in that. In the long run, if any “unapproved” downloading/converting/scanning process becomes a habit for previously law-abiding customers, the publishers may have a hard time getting us back.

  15. Ethical gyrations and arguments about how you, personally, feel about copying print books into e-format, or downloading books others have copied, are meaningless. What matters is whether you can be sued for it by the copyright holder. If you are sued and you lose, you will be out, probably, tens of thousands of dollars in legal fees and penalties. Your feelings about ethics will have zero effect on the copyright holder–who is the party who knows whether your actions have harmed them financially or in any other way. Don’t count on publishers wanting to be nice to “customers” who are not paying and/or who encourage others not to pay.

    It’s a lot cheaper to just buy the book legitimately.

  16. I am an author whose books have recently shown up on various torrent sites. My publisher offers electronic versions of all my titles, as well as print, so anyone who illegally downloads my work is explicitly choosing not to pay for it.

    I can understand various arguments from the point of view of the consumer (being a consumer myself). If someone purchases an eBook of one of my novels and subsequently loses it (computer crash, or whatever), I totally get why they might want to replace it by downloading an illegal copy. Having said that, I don’t like that they are supporting piracy by doing so. And really, people need to learn to back up their data so that they won’t find themselves in that position (but that’s a topic for another day).

    I think the question of whether it’s ethical to download an illegal copy of a physical book you already own is a sticky one. The end result for the consumer is the same as it would have been if he/she had made the copy themselves, using their purchased hard copy, but in reality, they are breaking the law. So the end result for them is irrelevant. I may be entitled to rip a movie off a DVD I purchased, but it’s still illegal to download a pirated copy of the same movie. It may seem like splitting hairs to some, but when obtaining an illegal copy of something helps support the very practice of piracy, there is a legitimate difference there.

    I agree that authors often get forgotten in these discussions–or worse, people view “authors” as cut from the same cloth: J.K. Rowling = Dan Brown = Me. Trust me, this is not the case. I do not make a living from my writing, though it takes up a substantial amount of my free time. It takes me months to write a first draft. Then more months to navigate the editing process with a professional editor (who needs to get paid for her efforts, too). Additional months for my publisher to get my book through their pipeline: marketing, cover design, typesetting, printing, etc. I do not get paid an advance (plenty of small publishers don’t offer them). The biggest royalty check I’ve ever received was $2500. I get four of those checks a year. Not enough to live on, for sure. And this is far more typical than the money the Dan Browns and Stephen Kings earn from their books. Granted, I write genre fiction (and a niche genre, at that), but I’m published by one of the biggest publishers in that genre, and I’m definitely one of their best sellers. So they’re not getting rich either.

    As everyone familiar with publishing knows, things are changing. Big publishers are finding it difficult to remain sustainable, and small publishers are increasingly relevant in the industry. While people justify pirating by telling themselves that they’re just ripping off big companies and rich authors, that is often very far from the truth.

    I write because I enjoy writing, not for money. Because there isn’t a lot of money in it, for most people. But there’s a little money, and I appreciate that…because being a professional, published author is hard work. I’m not sure I’d go through the whole process for no compensation whatsoever. At that point, it’d be a lot easier to write stories and post them online for free…and not deal with the editors, and the deadlines, and the proposals, and all the other stuff that goes along with producing the kind of polished product people want. Sure, the quality might suffer, but you get what you pay for…right?

  17. Driving above the speed limit is not “supporting dangerous street-racing on residential roads”. Similarly, downloading an electronic version of a book from an unauthorized file-sharing network is not “supporting piracy”.

  18. Lance:

    Eric Flint discusses that very subject in his essays on the Baen Free Library site, both on its home page and the “Prime Palaver” essays…

    From the Library’s home page http://www.baen.com/library/

    Eric Flint:
    “Take, for instance, the phenomenon of people lending books to their friends — a phenomenon which absolutely dwarfs, by several orders of magnitude, online piracy of copyrighted books.

    What’s happened here? Has the author “lost a sale?”

    Well. . . yeah, in the short run — assuming, of course, that said person would have bought the book if he couldn’t borrow it. Sure. Instead of buying a copy of the author’s book, the Wretched Scoundrel Borrower (with the Lender as his Accomplice) has “cheated” the author. Read his work for free! Without paying for it!

    The same thing happens when someone checks a book out of a public library — a “transaction” which, again, dwarfs by several orders of magnitude all forms of online piracy. The author only collects royalties once, when the library purchases a copy. Thereafter. . .

    Robbed again! And again, and again!

    Yet. . . yet. . .

    I don’t know any author, other than a few who are — to speak bluntly — cretins, who hears about people lending his or her books to their friends, or checking them out of a library, with anything other than pleasure. Because they understand full well that, in the long run, what maintains and (especially) expands a writer’s audience base is that mysterious magic we call: word of mouth.

    Word of mouth, unlike paid advertising, comes free to the author — and it’s ten times more effective than any kind of paid advertising, because it’s the one form of promotion which people usually _trust_.”

  19. I am an aspiring sci-fi novelist and can tell you guys that I will be absolutely thrilled when my novel is on some big torrent site like the Pirate Bay. You know why? 2 reasons:

    1) Some people will only read a book in old school format and are thus willing to pay for it.
    2) Having my work on the bay with 50+ seeders will only increase my reputation, which ties into number 1.

    That said, I have a nice salary at my job, so I wouldn’t be writing to support myself.

  20. This is a great article. I have tons of books that I drag around from place to place (I move a lot due to crappy, small city apartments) and often daydream about just being able to scan in some of my beloved books and then keep the hard copies somewhere permanent. What about books that are NEVER going to make it to ebooks? Or obscure books that are in the public domain now due to publishing date? Why shouldn’t we be able to have a service scan to an electronic, readable format? Especially if we’ve purchased the right to read the book already.

  21. Also, as someone else mentioned, isn’t the point that file sharing is the problem too? If I purchase a cd, transfer those electronic files to my mp3 player but only for my personal use, wouldn’t transferring a paper copy of a book to an electronic format for my personal use only be the same? What if I walked up to a copier, stood there for a day and made a copy of a book because it’s crumbling/damaged and I want a version I can carry around? Right or wrong? I just don’t think it’s fair to force people to buy an e-version if they’ve already purchased the paper version. I think eventually though the market might force being able to transfer your personal libraries to a a personal electronic reading format.

  22. If I were a publisher, I’d be offering low price ebooks — say $5 — with a voucher for a $5 refund on a print purchase of the same book. Make it easy for people, and they won’t be bothered with piracy. Most people want to be honest, but the current systems in play actually make it easier to be dishonest.

  23. Spotrick that is fine idea, among many, that big publishers should be looking at but won’t. The reason is that they are not interested in any ideas that might undermine their high pricing policy. They have persuaded governments to lay the golden egg of outrageous copyright laws and are now reaping the riches. They want only to screw another payment from you. period. Luckily all of this paper nonsense will be gone soon and the market will be mostly electronic and far more democratic.
    There is no relevance for ethics here other than it being wholly ethical to oppose, and refuse to comply with, unfair, unjust,and exploitative laws that have gotten completely out of hand. I have paid for my copy of my Beatles White Album CD legitimately. I will (and have already done so) copy it to any format I feel like and I’ll keep a separate copy on each and all of my devices. I don’t give a monkeys if it is legal according to some ridiculous interpretation of the copyright laws or not. It is RIGHT and fair and just.
    I also have a very damaged copy of a great poetry book from my childhood and am considering making a photocopy, as mentioned above. It is fully mine and I will do so whether it is 100% ‘legal’ or not. It is RIGHT and fair and just. I paid for it. It is mine. End of story.
    A while back my business advisor lost his Kindle on a trip to Spain, and all of the eBooks on it. There were five titles that he got from sites that don’t allow re downloads. We had a chat . . . and at the end of it he downloaded them from a torrent site. I congratulated him. He has what he paid for and that is what matters. That is all that matters. The idea that doing so supports piracy is a load of twaddle. This is real life and if the Publishers feel they have a right to behave badly then the customer must exert his power to oppose it.
    The great change that has come with the advent of the digital age is the democratisation of resistance against the power of the monopoly and the corporate exploitation of laws like copyright. This is what they hate most about the change to digital. They know that there is only so far they can push people or the people will retaliate and bypass their little ‘scheme’. And it is a ‘scheme’. DRM, geo restrictions, format restrictions, platform restrictions, yada yada yada. All part of the copyright ‘scheme’.
    I support legal sales. I support legal downloads. I support legitimate purchasing of product. But I don’t support unethical, exploitative screwing of the public with or without the help of the law.

  24. spotrick: I completely agree with what you just said. That would encourage me more to buy a book and an e-book.

    I’m one of those people who will buy a book, not only because it looks nice on my shelves, but I also love to be loyal to a series. For example, I got into the mortal Instruments series written by Cassandra Claire. I started with a paperback version of the first book and have been loyal to the series, plus I like having the matching set on my bookshelf. Now here comes the debate, since I already bought the book, why can’t I just put it on a tablet or Kindle and take my books with me? Why do I have to lug around heavy books beacause I might want to read a chapter or two of a bunch of different book?. Lets not mention the weight if they were hardcover.

    In fact, this is why I havn’t invested money in a kindle or anything of the sort. I already bought the book once, why am I paying for it again, just because I’m making it more portable for me? In the case of the Kindle, I would be paying more for the e-book than the paperback at walmart. So I would have to double my investment in one book, just because I want to view it on another form of media?

    How many people are out there like me? The people that like to buy physical copies of a book, and have passed on all these tablets designed for e-books, just because they don’t want to pay for the same book twice? I bet there are more of those out there than people would think. Lets be honest, if I break down and buy a tablet, I won’t be paying another $10 for a book I already own. More piracy probably exists because of this than people who just don’t want to pay for the book period.

  25. This makes me wonder about a service where people put their catalogue of CD music online for ONLY their use. However, when they are not playing it, others in their network may… but only one at a time, so queuing music involves also a queue FOR the music.

    Now this would be ethical as we have the right to lend… the only argument being that the original CD ‘might’ still be played concurrently – but proving that, should the uploader sign over their ownership (under walking possession) to the service provider and become it’s custodian *only* until such time as they delete the item from their account could be difficult. Is that any different (in terms of ownership and rights) to the service provider BUYING 100 copies of a CD and permitting only 100 concurrent plays. They may not have bought it, but they DO own it – and a distributed lending library is born : )

    Each copy has played essentially a bill of sale. For contractual purposes the service could even credit you 1p (or any other consideration) for every CD you rip into their possession – and the contract of sale gives you the right to purchase it back for that same 1p (or give up that other consideration) when you wish.

    The only question is whether a lending digital lending library tied squarely to the number of each CD it actually possesses, be considered lawful if it avails itself of the benefits of electronic delivery. The only real offence would be if the previous owner chose to play the CD whilst it was properly owned by the provider, but good luck nailing that charge to the service provider (who’s ownership is legitimate) or even finding out about the donors indiscretion.

    Technology throws up interesting situations all the time and it is up to companies to adapt to the new culture, not the other way around.

    The Robert Heinlein quote is a good one ; )

    • Well, Gary, as I mentioned in the article itself, Michael Robertson tried something like the service you propose, and lost bigtime in court—completely wiping out the MP3.com site, which up to that point had been kind of a self-publishing site for music the way Amazon is now for e-books. (I still have a number of the mailed-out CDROMs full of MP3s that MP3.com sent back in the day; rediscovered them while unpacking stuff for my new apartment.)

      Of course, things change, and now we have song storage lockers where people can upload their own music and stream it back. And of course nothing prevents people from sharing their logins with such services with their family. Indeed, the way they’re set up, you can only stream to one device at once. Not quite what you suggest, but close.

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