The Dutch ebook reselling site Tom Kabinet is being dragged to court by Dutch publishers who want to close the site for alleged copyright infringement. The case could effect how used digital goods are resold in Europe.
Tom Kabinet, which launched just last week, offers a platform to “legally” sell used ebooks.
“We have the same goal as publishers: reducing the illegal downloads of ebooks,” said Marc Jellema, one of Tom Kabinet’s co-founders to Computerworld Netherlands. According to Jellema, ebooks are too expensive. If you can resell them, their price will decrease, he said.
Much of Tom Kabinet’s system is based on trust. Ebook sellers have to declare they obtained their copies legally and have to agree to delete their copies when their books are sold, according to the company’s site. The service however has no way to verify whether a copy is legal or whether copies were deleted by their original owners.
Before a book is sold Tom Kabinet marks it with a digital water mark. Those digital markers are stored in a database so possible illegal distributions can be traced. By doing this Tom Kabinet “does everything within its power” to facilitate the legal resale of ebooks, it said, adding that it trusts sellers to respect its rules.
The publishers do not trust this mechanism. Since they don’t have access to the watermark database, they can’t verify whether ebooks sold through the site are shared with others.
The publishers believe Tom Kabinet infringes on copyrights, said Christiaan Alberdingk Thijm, a copyright lawyer who represents the Dutch Publishers Association (DPA), which has sued to take the site offline.
Tom Kabinet argues that a publisher’s copyright on an ebook is exhausted once it is sold, as is the case with paper books.
To support its claim, the site refers to a 2012 decision by the Court of Justice of the European Union (CJEU), which ruled in a dispute between Oracle and UsedSoft that the trading of “used” software licenses is legal and that the author of such software cannot oppose any resale. This verdict also applies to ebooks, according to Tom Kabinet.
Alberdingk Thijm counters that the CJEU verdict does not apply to ebooks because the UsedSoft judgment specifically addressed the resale of software licenses. “This case is legally not very complicated,” he said, adding that copyrights on ebooks cannot be exhausted.
A hearing between the two parties is planned for July 10 at the Amsterdam District Court.
The UsedSoft verdict has been used before to argue that the resale of ebooks is legal.
The Regional Court of Bielefeld in Germany ruled last March that the UsedSoft verdict can only be applied to software and not to the resale of ebooks and audiobooks. The ruling was made in a dispute between the German Publishers and Booksellers Association and the Federation of German Consumer Organizations (VZBV).
That case was appealed, and in June the Higher Regional Court of Hamm confirmed the Regional Court’s decision.
The appeal was limited to deal only with the resale of audio books, said Ole Jani, an attorney specializing in copyright law who represents the German publishers.
“But this really shouldn’t make a difference from a copyright perspective,” he said.
The audiobook case can now be appealed to Germany’s Federal Court of Justice, which would be interesting from a legal perspective, Jani said, adding that the Federal Court could refer the case to the CJEU.
An appeal is uncertain. The VZBV wants to appeal the case, but it is not clear if the Federal Court will accept it, VZBV’s attorney Michael Peter said in an email.
(Additional reporting by Loek Essers in Amsterdam)