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Paying Twice for the Same Item

April 12th, 2010

Randy Cohen, ethicist for the New York Times, has an interesting spin on a reader’s question about pirating a book which he already bought. In short: it’s illegal, but not unethical. The reader in question already paid full price for the hardcover, so Cohen feels that there is no bad juju involved in downloading the same work for an ebook reader:

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.

Cohen notes immediately after that, however, that publishers disagree:

Unsurprisingly, many in the book business take a harder line. My friend Jamie Raab, the publisher of Grand Central Publishing and an executive vice president of the Hachette Book Group, says: “Anyone who downloads a pirated e-book has, in effect, stolen the intellectual property of an author and publisher. To condone this is to condone theft.”

I’m definitely with Cohen on this, although he’s a bit wrong on what lags behind what (see the next paragraph). What the publishers want, of course, is the ability to re-sell the same product to the same consumer over and over again, and call them “separate” purchases. I liked my purchase of the Star Trek Blu-ray because it contained a digital copy which I could use on my computers and my iPhone. Including a DVD-compatible version would be even better. The point is, you should never be forced to pay twice for the exact same thing. Publishers, of course, want as much of your money any way they can get it, so they fight for the paradigm of device-centric purchases.

Partly to blame here is the mindset that came into play with business purchases of software. Because businesses would use the same software on hundreds or thousands of machines, instead of having to wastefully purchase that many physical copies of the software, they would buy just one copy. That copy would come with an EULA (End User License Agreement) that would spell out exactly how the software could be used–how many machines or users, in what environments, etc.

Soon enough, the EULA was popping up everywhere, including personal purchases of software. If you buy a copy of a program for personal use only, you may have to pay several times–one each for every computer you use it on. Sure, if there are different versions for different devices, like for Windows, OS X, and the iPhone OS–that represents separate products which the author must work to produce. But for the exact same product on two machines using the same OS? How is that really fair, when there’s only one user? Depends on how you see it, of course–and of course, sellers will want to see it in the way that makes them the most money.

Most users see it differently: I am one person using this content, I should not have to pay to use it in two different places. Some extend that not just to themselves, but to family–after all, if I buy a book, I don’t have to pay for my family members to read it; within the home, there is a “community property” sense at work. While the same could be said about lending to friends, most people would agree that the ethical line ends pretty sharply at the borders to your house, and some will say it ends around the individual user. Publishers insist that it ends around the individual device. Often times a compromise is met which reflects these sensibilities; for example, your iTunes account can be extended to five devices, enough for most families. Some software comes in heavily discounted “family” packs.

However, the EULA was seen as an opportunity for content publishers in the digital world, who applied it to music, video, and all other forms of media. Publishers realized that they could use the EULA to keep that cash register ringing: sell a movie on DVD, then on Blu-ray, then for the computer, then again for the mobile device. As the number of devices which can play media multiplied, publishers saw the number of sales opportunities similarly multiply, and so have since aggressively pushed the idea that any copying, in any form is illegal and shameful. That includes ripping your CDs to iTunes. You’re a criminal, they insist; instead, if you want to use your iPod to listen to the music which you already bought on CD, you must go to the iTunes Store and purchase it again digitally, like a good little consumer. Naturally, most consumers call bullshit on that and rip away.

What it comes down to is perception and control. Are you buying a thing, or the rights to use a thing in a very specific way in a very specific place? Once you buy something, do you own it for personal use, or does the publisher maintain both ownership and control, with you simply having the privilege of looking at it in the way the publisher approves of? It could be argued both ways, with publishers claiming that the idea of copyright in itself asserts eternal control by the owner over intellectual property. But publishers try to go beyond that, not just controlling the rights to the intellectual property, but also controlling a consumer’s personal use of that property. If John Grisham writes a book and I buy a copy, he still owns the story, but he does not control the specific book I bought, nor can he dictate to me how I read it. Publishers are trying to change that, at least in the digital world (though you know they would do the same in the physical world if they thought they could get away with it).

As I laid out a little more than fours years ago, once you apply the digital model to a physical purchase, the “eternal control” concept and most EULA terms come across as ludicrous. If you purchase a paperback book, it does not come with an agreement that you will only read it at home, and that reading it in a cafe, at the park, or at work would require additional payment. They can’t charge you extra for reading the book in bed, or using a book-light with it. In purchasing the book, there is no legal way for the publisher to prohibit you from later selling that book to another person. Nor will they try to–people would seriously balk at that, the idea being contemptible.

And yet this is precisely the kind of control and re-purchasing which the publishers are trying to foist on people with the transition to the digital medium. If you buy digital music, digital movies, or ebooks, you will not be allowed to re-sell these things, even if you paid more for them than you would have for a physical copy. And many will forbid you to transfer the work to another location, or else severely limit it. Technically, I am violating my purchase agreement when I rip a DVD I bought so I can view it on my computer or iPhone, unless they specifically say I can.

Screw them. I say the traditional model holds. Cohen is right: if you pay full price for a book, you paid for the book content to be at your disposal. Downloading the digital version of the book is no crime, as the publisher and author have already made their money off of you. In my book, forcing a consumer to pay again for something they already bought is, if not illegal, then certainly unethical. Now, if the electronic edition is different, if it contains extra content like audio, video, or even changes one would expect in a subsequent edition, that’s not kosher to download for free; it represents added work. Sure, you can grouse that the 47th re-re-release of the “Star Wars” soundtrack only adds two tracks that the other five versions you bought don’t have, and George Lucas is being a schmuck for trying to make you pay for the same music over and over again just to get the new snippets–but there’s new content, and so you can’t say you already paid for it.

Publishers instead insist that it’s all in the agreement, and will refuse to sell to you unless you agree to their terms. The law, over time, has sided with the traditional model (remember the whole debate over recording video at home?), but more and more I fear that the content cartels will get more and more restrictive laws passed, like the DMCA, and eventually consumers will be forced by a government bought and sold to work against them to toe the publishers’ line.

  1. Tim Kane
    April 12th, 2010 at 12:06 | #1

    A friend of mine had a similar issue we were discussing. How to port an existing copy of software (MS-Office) to different devices when you don’t have the original installation discs handy.

    Somewhere back in St. Louis, in storage in a friends basement, is my copy of MS-Office (and other stuff), circa 2000 or some such thing (I can’t exactly remember when I bought it). It has the number on the case for installing the thing.

    I installed it on my laptop p.c. last time I was in St. Louis, 2.5 years ago. But my laptop passed its half life, so I wanted to up grade the hard drive and memory – since I love the machine, I don’t want to get rid of it (it has great speakers, screen specs that I like etc…).

    The question became: How to move on to a new hard drive without my software installation discs and accompanying serial numbers I need to enter into the installation to make it valid?

    The answer was purchasing hard drive image replicating software. It takes the image on your existing hard drive and places it on the new hard drive. It even replicates the partitions – in a way that is proportional. Then you take the replicate on the larger hard drive, install it in your P.C. and voila – you have a complete upgrade without having to monkey around with reinstalling all your hardware and data.

    But I also bought a cheap netbook for $225. How can I get MS-Office on that too?

    Well the netbook has a built in slot for reading memory cards.

    So now my geek friend and I were thinking, I will buy large memory – card, say 16 meg, and place an image on the card, reduced to just applications (no data) and perhaps operating system.

    Then maybe, I can slide that card into any compatible machine with a card reader and use all of my old applications, without having to buy a license, or go all the way back to St. Louis to rummage through my storage.

    Of course, I could pay more to buy more stuff from Microsoft, but I’m not really interested in spending more money with Microsoft for their applications, having done so once already.

    I suppose the product is migrating farther and farther away from what it was when I first got it, so that some day I might have to buy new stuff because of adolescence. But I’m hoping that by that time I’m operating in a new paradigm: either new operating system or perhaps there will be a new Office standard (Apples?) or perhaps I’ll be using Apple machines by then.

    But seems to me, people should consider installing their applications on card readers so that the software is portable between devices. I’m not sure if this is doable, but I’m intrigued enough to try this out in the near future.

  2. Leszek Cyfer
    April 12th, 2010 at 21:39 | #2

    Interesting change of paradigm – to install the EULA program on a virtual machine, and then use it only on that virtual machine.

    Of course you can run the virtual machine on any device capable of running it 😛

  3. Tim Kane
    April 13th, 2010 at 07:18 | #3



    Think about it. If you installed your apps and your copy right media onto a memory card, you could install that memory card into any machine handy to use that media or application.

    Now in the case of Microsoft, that’s precisely what they don’t want you to do, but legally, there’s nothing to prevent anyone from doing that, unless they proscribe against it in their licensing agreement.

    Anyway, I’m gonna take a shot at it soon.

  4. Leszek Cyfer
    April 13th, 2010 at 21:16 | #4

    To install system and all the programs on pendrive, then start computers booting from the pendrive.

    Voila :)

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