On the separation of license grant and physical artifacts

I’ve been pondering the issue for a while, but have yet to put it in writing, until Frédéric Filloux wrote about it on Monday Note:

We’re now in 2015. I read books-related contents on a number of different devices: my smartphone, my high definition tablet, and even my PC some times. (I personally do not believe in TV for such products). I want spend a long weekend in Rome. Instead of buying a couple of books – one to organize my trip and another to use on location – I will buy rights to both.

My digital rights are also transferable: I can loan or give the book by simply transferring the rights attached to the digital files. In retrospect, this feature makes 2010 digital bookstores look primitive. For instance, in the Apple iBooks Store, I was forbidden to offer a book to anyone or even to access to a iBooks in a foreign country – thus negating key advantages of dematerialized contents.

Some of these are already possible nowadays — tech-savvy publishers such as O’Reilly and The Pragmatic Bookshelf already let you regenerate your digital content in the format of your choice, though normally limited to PDF, ePub and Mobi/Kindle only. But the ePub format should be flexible enough to display differently based on available screen size and multimedia support. There are free self-publishing options with sites such as FeedBooks. There are music sites that sell music files in multiple formats — though so far, only Magnatune (which has shifted entirely to a subscription model) allows redownloading while the others (Pristine Classical, HDtracks, iTunes) make you commit to the format of your choice at purchase time.

There are several limitations with these sites that might prevent more widespread adoption, though:

  • Reliance on customers’ ethics: for example, The Pragmatic Bookshelf uses an easy-to-remove watermark; O’Reilly does not use any DRM or watermark; likewise with Magnatune, Pristine Classical and HDtracks. While admirable, and I personally find it a moral obligation not to distribute digital products entrusted to me in such a manner, many publishers would likely balk at the idea.
  • Conversely, overly-restrictive DRM: the Amazon Kindle, Apple iBooks and B&N nook stores fall in this category. B&N innovated the ability to lend books but in a very restricted fashion: you can only lend to a unique user once, and only for two weeks. Why? Physical books can be passed around without constraints. Amazon, sadly, chose to copy this model without any change. It’s sad, when public libraries that offer DRMed ePub lending do not have such restrictive conditions; the problem is not technical but commercial motivation.
  • Inflexible purchasing model: with the non-DRMed publishers you normally commit in advance to buying the rights to a work in digital-only form, or in a paper+digital bundle. You can’t “upgrade” from digital-only to paper+digital (though upgrading in the reverse direction is sometimes possible). You can’t order a replacement physical media if yours is damaged (though, again, software games publishers used to offer this). You can’t, of course, “upgrade” from a DVD to a Blu-Ray edition of your favorite movie without paying the full purchase price.

The solution, as I see it, is to separate right of use from the physical artifact. Publishers should be able to sell the two independently from each other (though obviously there is a dependency of the latter on the former). You should be able to permanently deactivate your rights license code on an artifact (for reselling), or temporarily deactivate it (for lending), and set a time limit on the latter. After all, in the information age content is getting increasingly Platonic: living in pure digital form, only to be instantiated into tangible physical forms — we should focus less on the latter and more on the former.

4 responses to “On the separation of license grant and physical artifacts

  1. Wow,
    that’s exactly what I’d like to see one day – separate right of use from the physical artifact!!!

  2. Right of use shouldn’t be sold in the first place. Either give me the physical object to do as I please or get out of the industry.

    To put it more scientifically: right of use is a non-excludable non-rival good. I’ll leave those undefined since the wikipedia article should be good reading for anyone but the point is in a free market without government interference it shouldn’t be possible to profitably sell right of use.

  3. Casey: what exactly is ‘the physical object’, when we’re talking about ebooks?

    Michael: of course, what the publishers want is to separate the two, but then not allow you any control over the disposition of the license. (They want to grant you an exclusive, non-transferable license to access the content in a single format. Ever tried arguing with a publisher? “So, can I give this ebook to someone else?” “No. You only bought a license to read it. You didn’t buy the book.” “Ah, so it’s fine for me to go and download it in a different format to read on this other device, then, right? After all, I didn’t buy the ebook, I bought a license to read it.” “Urm…nope. Now stop asking awkward questions before we sue you.”) And, legal systems being what they are, we’ll probably all just smile and swallow it.

    • So here’s the thing. The situation Casey describes is, ironically, something the media industries profit hugely from, in the past. Remember buying vinyl, cassette and CD versions of the same album?

      As for government involvement in enforcing copyrights — it’s a matter of degree, is it not? Without *any* government role at all, you’d be free to make duplicate copies and distribute them, but the RIAA would probably hire their own enforcement squad. Does not sound pretty.

      I think my position is in between Casey (there should be no rights of use) and Adam’s description of the publishers’ ideal (very segmented rights of use). Between tragedy of the commons on one hand (people over-use a resource they don’t feel responsible for) and tragedy of the anti-commons (when ownership rights get divvied up into pieces that are too small, you get… surprise surprise, deadlock).

      I’d recommend reading Gridlock — it discusses the anti-commons situation in fascinating (and scary) details.