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From the quarter bin to the slabbed copy sold at auction, sales of used comics are an important factor in the collectors’ market. Many a childhood comics habit started out with with secondhand copies picked up at thrift shops or garage sales for a dime, and a hefty area of the floor at every comics convention I have been to has been set aside for dealers with tables and tables of longboxes filled with old issues.
That’s one comics tradition unlikely to translate to the digital era: A federal judge has ruled the doctrine of first sale does not apply to digital files. In this case, they’re music files, but the case is being closely watched by book publishers.
The doctrine of first sale basically says that once you’ve bought a copyrighted product, you can re-sell it, rent it out, lend it, or do whatever you like with it — except reproduce it — without any obligation to the copyright owner. This allows comics shops to sell used comics and libraries to lend out graphic novels without having to pay royalties, but for obvious reasons, its application to digital products is problematic.
This weeks’ court case, Capitol Records vs. ReDigi, highlights the problem, and while it involved music files, not books, the parallel to e-book and digital comics resales are obvious. Users could upload their digital files to ReDigi’s servers, and in the process the files would be removed from the user’s computer. Then ReDigi would offer the files for sale and keep a cut of the proceeds. U.S. District Judge Richard Sullivan granted summary judgement against ReDigi, saying that the doctrine of first sale did not hold because the upload constituted an unlawful reproduction:
“ReDigi stresses that it migrates a file from a user’s computer to its Cloud Locker, so that the same file is transferred to the ReDigi server and no copying occurs. However, even if that were the case, the fact that a file has moved from one material object—the user’s computer—to another—the ReDigi server—means a reproduction has occurred,” Sullivan explained. “Similarly, when a ReDigi user downloads a new purchase from the ReDigi website to her computer, yet another reproduction is created. It is beside the point that the original phonorecord no longer exists. It matters only that a new phonorecord has been created.”
The digitally curious might want to read the entire ruling (linked above), because it goes into some detail about this concept. But the bottom line is this judge sees the first sale doctrine as applicable only to physical media — so if you want to sell your iPad or Kindle loaded with digital comics, that would be fine, but you couldn’t sell the comics one by one as digital files.
What does it mean to sell a used digital file, anyway? And why would you bother? It might seem like a strange idea, but both Amazon and Apple are working on it. Part of this may have to do with cost: There is a persistent perception that digital comics and e-books are worth less than their hard-copy counterparts, in part because they can’t be passed along to a friend or resold. On the other hand, a used digital file is indistinguishable from a new one, except for price, so publishers have a strong incentive to fight resales.
Back when I was a kid, monthly comics were disposable items. We read them, passed them around, and traded them, and while we might toss a couple into a box, we didn’t really save them. That’s still the case for many readers today: While there is a definite collector mentality, many readers are just looking for their monthly fix, and if they want to keep a story, they will buy the trade. On the other hand, digital comics don’t present the storage issues that physical comics do, so there’s no reason to get rid of them. Most digital comics services store your purchases in the cloud anyway, and if your hard drive gets filled with downloaded PDFs, it’s easy enough to transfer them somewhere else. Unless you’re getting a lot of money for your used files, selling them probably isn’t worth the trouble. What’s more, with most digital comics services, you are’t actually buying the comic, you are buying a license to read it, so you can’t resell it without explicit permission.
Aside from the legal issues, a digital comics marketplace wouldn’t be much fun. One of the great pleasures of hunting through used bookstores or longboxes of old comics is the thought that you might be the person who buys a comic for a quarter and sells it for a million dollars, or even of just stumbling across something really nice at a great price. In a digital world, all the files are in the same condition, and prices would likely be standardized, so the serendipity factor wouldn’t be there. Still, it could be a good resource for new readers or those without a lot of cash to burn, and the fact that Amazon already has a patent on a reselling process, and Apple has applied for one, suggest the issue is far from dead.