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E-Readers and E-Books: A New Direction for Textbooks

Sue Burum
Minnesota State University, Mankato

     E-books and e-readers are coming! Gibbon-Fairfax-Winthrop High School, in rural Minnesota, this fall provided each student with an iPad. (Kent 2010)  Teachers spent time during the summer receiving training on how to operate the iPad and how to integrate the device into classroom studies.  Student iPads included e-books and applications (apps) the school decided to use in the classroom.  To limit the use of the device to education, students are forbidden from downloading applications and game playing without administration approval. The devices are expensive and cost between $500 and $800.  The school obtained the money to purchase the devices from one-time consolidation funds, capital funds and funds previously set aside for technology upgrades.  School leaders hope it will place the school at the cutting edge of technology.  Students interviewed were both nervous about learning the new device and excited about how the new device will change their education.  They also seemed happy to have books, notes, folders and other classroom resources all on one lightweight device.  Backpacks were getting very heavy!

     Barnes and Nobles, at the start of November 2010, announced on their web site that they would be introducing a new Nook. (Barnes, 2010)  The first Nook is a black and white e-ink reading device that is not backlit. It is similar to the Kindle.  The new color Nook will be more similar to the iPad in that it will have the same backlit color touch screen and allow people to web surf, check email, listen to music, play games, watch video and purchase future apps that will further expand the use of the device. It will allow people to purchase magazine subscriptions and, of course, read books. It is smaller with a seven-inch screen and tailored to also include children’s books.  Their device includes “alive touch” which makes children’s book pictures move.  The device can also be set to read books to children.  As these two examples suggest, anyone who teaches or has children will soon be exposed to e-books and e-textbooks.  Students will expect teachers to use e-books in the classrooms as they grew up reading electronic books through different devices.

     Among the general population, the use of e-books is growing.  Amazon, which sells the Kindle and has a Kindle reading app for many electronic devices, announced that it’s e-book sales surpassed hard cover book sales. (Fowlerr 2010)  (Paperback sales, however, are still the most popular.)  Many people reading with e-readers have reported an increase in their amount of reading. (Fowlerr 2010)  Reading on an e-reader is slower than reading a traditional book.  Amazon reported people with e-readers bought 3.3 times as many books as those who do not own a reading device.  This is very encouraging to book publishers since a 2007 study by the National Endowment for the Arts reported that Americans were reading less, and about half of all Americans aged 18 to 24 read no books for pleasure. (Fowlerr 2010)  Textbook publishers, however, have been cautious in their adoption of e-textbooks.  When asked, many representatives of the companies will just state adoption is slow because different readers have different platforms.  Amazon e-books cannot be downloaded and read on Nook readers, and Barnes and Noble e-books cannot be read on Kindle readers.  However, both companies have applications for people to download to Mac or PC computers and iPhone or Android phones.  People who own iPads, for example, can download iBooks from Apple as well as the Nook and Kindle apps that allow books from these companies to be purchased and read on the device through the app.  Thus the fear of having different platforms cannot be the publisher’s sole reason for their slow adoption of e-textbooks. 

e-Reader Comparison: Nook vs. Kindle vs. iPad

     Congress’ Higher Education Opportunity Act of 2008 went into effect July 1 of 2010. (Higher 2010)  This law was passed in part to address growing concerns college students face in their education including acquiring affordable textbooks.  The first provision of the law addressed price disclosure.  Textbook publishers must reveal pricing information to university faculty, copyright dates for the past three editions and list the substantial changes between the editions.  Second, the law requires publishers to offer bundled textbooks for sale individually.  “Bundled” textbooks often offer not only the textbook but also CD’s, workbooks and online passwords.  Often the bundled material was never used.  The extra materials make the bundles more expensive.  Third, colleges must make available a list of required textbooks, including the ISBN number and retail price, before the start of school.  This allows students to discover if the textbook can be purchased elsewhere for less money.  California passed a law that went further and requires publishers who sell textbooks to California colleges also offer those textbooks for sale in electronic format. (Reagan 2010)  While this law will not take effect until January 1, 2020, laws like these are putting pressure on publishers and could potentially reduce profits at a time when the publishing industry is facing big changes and declining profits in their industry.  Probably also of great concern to a publisher considering the adoption of textbooks in the digital format is the copyright law and publisher’s the ability to control the content and use of the digital textbooks.

     A recent important court decision in the area of copyright law, Vernor v. Audodesk, was filed on September 10, 2010 by the U. S. Court of Appeals for the Ninth Circuit. (Vernor III 2010)  If this case stands, it may make publishers feel more protected as they move into digital publishing.  This paper will review how the courts have so far treated digital materials and how publishers may use Vernor to protect their interests in both digital books and digital textbooks.  This paper will finish with a review of different e-book reader possibilities and list some advantages and disadvantages of different types of books and readers.

     An old U. S. Supreme Court case, Bobbs-Merrill Co. v. Straus, rejected attempts by publishers to control the sale of a book after the first sale of the book.  The publisher of The Castaways placed a notice on the copyright page of the book that said that the price of the book had to be $1. The book could not be resold for less and, if it was resold for less, the publisher would consider that an infringement of copyright laws.  Clearly the plan here was to destroy the resale market for used books.  Appellee Straus sold the book for 89 cents.  The publisher, the appellant, won injunctive relief at lower court levels to stop these sales.  However, the U.S. Supreme Court decided with the seller.  The Court concluded that copyright protection did not extend to sales of goods past the first sale.  The first sale from the publisher was for full price. After this sale a seller could charge what they wished for the item. Thus this case created the first sale doctrine, which Congress codified into law the following year. (First 1909)  The U.S. Supreme Court again looked at downstream restrictions on sales in the 1917 case of Straus v. Victor Talking Machine Co. (Straus 1917) This case dealt with the sale of phonographs.  The Victor Company sold the machines with a notice that the machines were only to be used with records, sound boxes and needles manufactured by the company.  The notice also stated that users just bought the ability to use the item; they did not own the machines.  Thus the buyer bought a license to use the item.  There was no sale of the item.  The U.S. Supreme Court stated that full price was paid for the machines and the buyer got physical possession of the machines.  This was a sale of the phonograph and not a mere license to use it.

     In 1977 the U.S. Court of Appeals for the Ninth Circuit interpreted these U.S. Supreme Court cases in the context of one of their cases.  They considered 35mm film in the case of United States v. Wise. (Wise 1977)  In this case several films were distributed to theaters.  They all had varying forms of license agreements.  These agreements required the films to be sent back after they were shown.  Thus the studio retained title to the prints.  Appellant Wise acquired some of these prints and resold the 35mm films on the secondary market claiming he owned them and thus could dispose of them as he saw fit.  In other words he said the first sale doctrine applied and cut off the studio from restricting downstream sales.  Another print of the film Camelot was sent to Vanessa Redgrave.  Under her license agreement, she paid the studio for the cost of the print.  She was restricted from selling it, making copies of it, showing it for profit and other similar restrictions.  She did not have to return the print to the studio. These two situations were decided differently in the Wise case.  The Court said there was no sale of the film to Wise where he acquired prints distributed to theaters.  The restrictions on the theaters’ use were too inconsistent with ownership.  The theaters only paid a fee in line with use not sale of the item, and the item had to be returned.  Thus the first sale doctrine did not apply when Wise acquired the film.  In the case of the Redgrave film, the court said her payment alone does not determine whether a sale occurred.  The court said any licensing agreement must be read in totality to determine if it really was a license or sale. She paid the full cost for the item and got permanent possession of it.  The whereabouts of her copy was unknown and there was no record of a sale.  Thus government failed to prove the absence of a first sale and that the first sale doctrine would not govern his acquiring the print from her.  Wise was criminally convicted of copyright infringement for acquiring the films from the theaters, but the way the Redgrave film was acquired was unclear.  The government bares the burden of proof in criminal cases.  How he acquired the Redgrave copy was not established.  Thus whether she could dispose of the copy and whether any first sale doctrine would apply is not clearly stated.  However, the Court did state the transaction strongly resembled a sale with restrictions on the use of the print.  Scholars split on the meaning of Wise. (Reagan 2010)  In the case of the Redgrave print, did the U.S. Supreme Court say there was a sale of the film?  Is there a sale if one pays for it in full and gets to keep the print?  Does a license exist simply because papers that come with an item say it is a license?  A sale would make the restrictions invalid because of the first sale doctrine.  Or was the Court saying Redgrave just got a sale that included restrictions which is not actually ownership but a license?  If a license, downstream restrictions could continue to those who acquired the license from her, providing she could even transfer her license.

     The Ninth Circuit also decided the cases known as the “MIA trio”.  These cases also concerned the distinction between owners and license holders.  In order to use software, a temporary copy of that software must be made into a computer’s random access memory.  This is a form of copying which is not necessarily given to a license holder of software.  Congress enacted the essential step defense. (Essential 1980)  This principle says that an “owner of a copy” can make another copy if it is essential to the use of that software.  The act also says the “owner of a particular copy” may claim the first sale doctrine.  MIA Systems Corp. v. Peak Computer, Inc., in 1993, concerned whether a computer repair technician’s making of a temporary copy of computer software constituted copyright infringement. (MIA 1993)  The Court concluded that a licensed holder of software is not an owner of that software.  No essential step protection or first sale doctrine applies.  The Court concluded the phrases “owner of a copy” and “owner of a particular copy” are the same and do not apply to license holders.  In response Congress allowed a computer owner to copy software for maintenance or repair purposes.  However, Congress did not broadly change the holding to say that licensees in general are entitled to the essential step defense.  In Triad Sys. Corp. v. Se. Express Co., the Ninth Circuit concluded in 1995 that the plaintiff sold the software to the customers. (Triad 1995)  Thus the customers were owners who would be entitled to the essential step defense.  The third MIA type case, decided in 2006, is Wall Data v. L.A. County.  In this case a sheriff’s department copied a computer program onto multiple hard drives. (Wall 2006)  The license agreement only allowed the software to be placed on one computer.   The Court decided that the sheriff’s department only had a license, and that the essential step defense could not apply especially to placing software on multiple computers.  The essential step defense could only cover an owner of the software and the making of one additional copy on the single computer needed to use the software.

     This brings the analysis to Vernor v. Autodesk. Autodesk makes the AutoCAD design software.  The company only sells licenses to use the software.  It does not allow purchasers to transfer the software.  Updates to the software can be purchased cheaper than full versions.  However, old versions must then be destroyed.  A company had upgraded to a newer version of the software.  The company had not installed the software on any computers.  They sold the software at an office sale with the handwritten activation codes necessary to run the software on the unopened packages.  Vernor acquired these copies and attempted to sell them on eBay.  He also acquired other copies in a similar manner.  Each time he posted one of these software packages on eBay, Autodesk filed a Digital Millennium Copyright Act takedown notice with eBay.  Each time Vernor filed a counter-claim notice with eBay contesting the action.  Each time Autodesk did not respond and Vernor was able to sell the software on eBay.  The fourth time this happened, eBay suspended Vernor’s account.  Vernor sold many things on eBay and suspending his account for a month was a loss of income.  In August 2007, Vernor brought a declaratory action against Autodesk to establish that he could sell more of the software that he had acquired.  Autodesk moved in 2008 to dismiss Vernor’s action.  The district court denied the motion. (Vernor I 2008)  The court decided that the first sale doctrine appeared to protect Vernor’s sale of the software.  After discovery, the parties filed cross-motions for summary judgment.  The district court granted summary judgment to Vernor in 2009. (Vernor II 2009)  The court first noted that licenses and sales are not mutually exclusive.  Restrictions can be placed on content that is sold.  Next the court concluded that it was unable to reconcile Wise with MIA and Wall Data.  The court decided it had to follow the earlier decision especially since it was a panel decision.  The court concluded there was a sale.  The court decided the true test of a license or sale was whether the buyer must return the goods.  Even though Autodesk only sold licenses, the court decided the sale by Autodesk was a sale with restrictions on use.  Old copies had to be destroyed, not returned.  Since it was a sale, the first sale doctrine applied.  Vernor’s customers’ copying of software during installation was also protected by the essential step defense.

What is the First Sale Doctrine?

     The Ninth Circuit filed the court decision in September 2010. (Vernor III 2010)  The court had to decide whether Autodesk sold or licensed the software.  If the original company buying the software owned the copies, then the sales to Vernor and subsequent sales would be governed by the first sale doctrine.  If Autodesk only licensed its software, then further sales would not be protected by the first sale doctrine.  The essential step defense also would not apply.  The Ninth Circuit concluded a software user is a licensee and not an owner.  The court decided that the first sale doctrine and the essential step defense only apply to owners of software, not licensees.  The court concluded multiple factors were used in Wise to decide if there was a sale or license.  Whether the item had to be returned is only one factor.  Other factors to consider are whether the agreement is labeled as a license, whether the copyright owner retains title, whether the item had to be destroyed or returned, whether one could duplicate the material and whether the transferee had to maintain possession of the prints for the duration of the agreement.  Autodesk clearly stated the only thing it sold was software licenses.  Autodesk placed significant restrictions on the user’s ability to transfer the software and on the software’s use.  The people Vernor bought the software from were not owners.  Thus Vernor and his subsequent buyers were not owners either.  The essential step defense also only applies to owners, so no one downstream can claim this as a defense either. 

     After the main opinion, the Ninth Circuit considered Vernor’s four counter arguments.  The first and fourth arguments were answered in the opinion.  First, Vernor thought Wise controlled and that there was a sale because possession was conveyed for an indefinite period of time.  Again the court said multiple factors were used in Wise to determine if there was a sale.  Fourth Vernor argued Autodesk made sales to its customers because copies of the software could be kept indefinitely without receiving license payments.  Again the court said these are just a couple of the factors to consider.  These facts alone do not dictate a sale.

     Second, Vernor argued that reversing the district court would create a split between the Federal and Second Circuits.  In 1999 the Federal Circuit, in DSC Commc’ns Corp. v. Pulse Commc’ns, Inc., decided a case where the parties sold competing telephone system hardware cards and the defendant used the plaintiffs software for it’s installation purposes. (DSC 1999)  The plaintiff said this was copyright infringement.  The defense argued that the customers owned the plaintiff’s software.  Thus the defendant’s use of the software was entitled to the essential step defense.  The court rejected this argument and said the customers only received a license and the defendant needed to develop software for installation purposes.  The court rejected MIA’s characterization of all holders of licenses as non-owners.  The Ninth circuit said this did not conflict with the holding in Vernor, as the customers in DSC were found to be a license holders and not owners. The defendant was not given the essential step defense.  For a conflict, someone would have to be given the essential step defense from a license.  In 2005 the Second Circuit, in Krause v. Titlesery, Inc., used a totality of the parties’ agreements standard to decide that the defendant in the case was entitled to an essential step defense. (Krause 2005)  The plaintiff was a software developer who sued his former employer for making modifications to his software program.  The parties did not have a written license agreement.  The employer paid the employee to develop programs for the employer’s use.  The employee agreed to allow the employer to use the programs forever, even if their relationship terminated.  The court in the case found that the employer owned copies of the work.  Again this was not contrary to Wise, as a licensee was not given ownership rights.  Thus the Ninth Circuit found no conflicts with other circuits.

     Finally, Vernor argued that Bobbs-Merrill entitled him to a first sale defense.  The Vernor court said the holding in Bobbs-Merrill was only that a copyright owner could not control the downstream sales of copies.  The U.S. Supreme Court did not analyze the use of restrictions on the transfer of books to create a license and whether a license could restrict the subsequent sales of books.

     Amicus briefs were filed in the case.  The Software & Information Industry Association and the Motion Picture Association of America argued on behalf of Autodesk.  In part they argued that enforcement of licenses allows for the tiered pricing of software.  Tiered pricing aids consumers in providing some simplified packages of software cheaper to those who do not need the entire package.  For example maybe some people might want to pay a dollar to read a book once rather than twenty dollars to read and own a book.  Software licenses and tired pricing make these consumer choices possible.  The American Library Association and eBay filed briefs on behalf of Vernor.  The libraries argued that the first sale doctrine allows libraries to exist.  Everything can now be licensed with restrictions against lending or borrowing.  This would put libraries and used bookstores out of business and ultimately make the cost of books more expensive from a lack of competition.  A decision for Autodesk would also affect the ability to lend software.  Libraries could also find that the licenses they buy to make books or software available to customers would soar in price just as the fees of many journals have increased if they are for use in a library.  EBay argued that a decision for Autodesk would force everyone purchasing copyrighted property to investigate the title to the property to be certain a first sale occurred.  This is impossible in the real world and would only serve to end secondary markets, which is not beneficial to consumers.  It could also turn everyone who purchases things from or holds a garage sale into a criminal.  Rental places like Blockbuster could have to close.   The Ninth Circuit, while agreeing that these are important considerations, did not address these concerns except to say that Congress again could revisit the first sale doctrine and the essential step defense and make modifications to the law if it deemed that necessary.

     The Vernor case will certainly be appealed. (Steiner 2010)  The first step in the appeal process will be to the whole Ninth Circuit.  It is not certain the Ninth Circuit will review the case en banc.  The court would have to see conflicting precedent in the circuit to do this.  The Vernor court went to great pains to distinguish other cases and interpret cases such that they are consistent.  The case could also be appealed to the U.S. Supreme Court.  However the court accepts less than one half of one percent of the cases that are appealed to it. (Crap 2011)  The Court would probably want to see conflicting decisions in the circuits before accepting the case.  Again, the Vernor court tried to interpret cases such that there is no inconsistency between the circuits.  Finally an appeal could be made to Congress to reevaluate the law in light of the increase in licensing and digital material.  Congress would be under tremendous pressure not to change the Vernor case.  People do not have to start businesses or create new products.  If they feel the business climate is working against them, they may not do so.  It would be nice to always side with “the little guy”, the consumer.  But, the little guy is ultimately punished if progress is stalled and new products do not become available.  Consumers might have to alter their expectations and purchase digital media with the understanding that they have bought a license and do not own the product.  If this does result in a decrease in cost to the consumer and new innovation and products, the Vernor analysis may be an advantage to everyone.

     What could be the effect of Vernor on books?  Vernor concludes that permanent physical possession alone does not determine whether someone gets ownership rights when the item is purchased.  The court said whether someone buys ownership rights or simply a license depends also on what the parties called the sale, restrictions on the use of the item, and restrictions on the sale or transfer of the item.  This implies that books, including textbooks, could be packaged with a shrink-wrap and a licensing agreement attached to the package.  If a person buys the book and opens the shrink-wrap, the person will have accepted the license and any restrictions it contains.  This seems very similar to the facts in Bobbs-Merrill and the notice on the restriction to future sales in The Castaways book.  If the case is limited to the idea that the U.S. Supreme Court, only considered ownership and the first sale doctrine, then a future court could consider this type of sale to be of a license and uphold any restrictions in the license.  The price would have to be considerably lower than the cost of buying the book.  Straus seems to stand for the proposition that something may be bought if full price is paid for the item and the person gains permanent possession of the item.  The buyer was considered to have bought the phonograph despite the apparent attempt to create a license.  Thus for purely tangible items, it may be hard to sell a license rather than a ownership.

     Digital books are a different matter.  Some digital books come on a CD.  An example is having books included on a CD that is sold with a magazine.  These would be considered “mixed transactions” in that there is a physical component to the sale.  This type of sale is most similar to the sale of software.  Copyright laws and Vernor would be expected to apply here.  These could be sales of ownership or a license depending on how the sale is structured.

     The most difficult type of sale to analyze under current law is a purely digital copy of a book bought over the web or “in the clouds.”  Here there is no physical component.  Article 2 of the Uniform Commercial Code concerns the sale of tangible goods.  It does not cover digital books that do not have a physical form.  Copyright principles like the first sale doctrine and the essential step defense would not apply if there were no sales of goods.  Digital content acquired over the web look more like transactions covered by intellectual property law where licenses are more the norm.  Ownership of the content is seldom transferred.  What is transferred is simply a license to use the content, and only under the express terms of the license.  This is very surprising to most people.  To acquire an e-book, one clicks the “buy” button.  The e-book is then placed in the person’s e-library “for all time.”  The average person would certainly conclude that the book was purchased just like a hardcover book is purchased from a store.

     What happens if people resist licenses and believe they own the digital item?  Digital Rights Management Technology (DRM) is often placed on digital content to enforce a license.  The Digital Millennium Copyright Act criminalizes ways to circumvent DRM. (Digital 1998)  When people believe they own something and have the right to do what they wish with the item, there is widespread disobedience. Many techniques are developed to bypass the DRM.  Music has now gotten to the point where the DRM is removed and people who buy a CD can place the CD on a computer or drop it into iTunes.  From there, copies can be placed onto portable devices like iPods and iPads.  This has not happened yet with movies.  Thus people search the web and find many programs that can take DRM out of a DVD.  The DVD is then dropped into a program where it is reformatted so it can be dropped into iTunes and placed on multiple devices.  There even are programs where people can capture the cover art from the movie’s case.  When done, what appears on a person’s device looks just like one they would have bought from iTunes.  People do this because they believe they bought the DVD and should not have to pay twice just to have the same movie on two devices.  They simply see the companies as greedy and refuse to pay twice for what they already think they own.  The movie industry can fight, but it is a loosing battle.  The same thing could happen to digital books if people find the licensure terms too onerous.  Already there are reports of people who have reformatted Kindle bought books so that they can place the books on other reading devices besides the Kindle.  Regardless of what the law or license says, people believe they bought it and can do with it what they wish.  Publishers always have to remember that the law can only go so far in the face of widespread public resistance.  Some balance has to be made between the public and copyright holders.  Congress may be in the best position to balance these groups and discover an acceptable and workable solution.  This reader hopes they can form a consensus and accomplish this.  People do not always accept court-imposed solutions, especially when they feel they did not have the ability to have their positions heard through the lawsuit. 

     The needs of libraries should be considered.  In a time of shrinking budgets, there is great temptation to purchase digital books because the cost is less.  However, whether the books can be lent out for others to read, depends on the license.  Libraries may have to pay for a special license that allows the books to be lent out to others.  This could cost more than other licenses.  The license fee also may not be a one-time fee.  Libraries are not in control of the license agreements and they can increase in cost or the company offering them could even stop the service or go out of business entirely.  The library owns the physical books.  The library can buy them and people can donate them to the library.  Physical books may not cost much more than a digital book over the long run.

     Digital books have many advantages.  They can be cheaper. (Trachtenberg 2010)  Many times if a hardcover book costs $28, the paperback book will cost $14.99 and the digital book will cost $12.99. Many classics are just a couple of dollars.  Some books are free. New writers often offer their first book for free.  They hope they will be find a paying publisher and audience.  Digital books are never sold out.  The digital books are often backed-up by the seller so the purchaser can get the book again should a device get lost or destroyed.  An e-reader holds thousands of digital books while being light in weight and small in size.  Pages in the books can be bookmarked, words can be looked up in a dictionary by clicking on the word, pages can be written on in the margins and sections can be highlighted.  Most important to older readers, the font size can be enlarged.  Before one buys a digital book, a chapter can be downloaded for free to see if the reader likes the book.  Barnes and Noble even allows some books to be lent to other Nook owners for a couple for weeks.  The iPad will read books to people through a computerized speech synthesizer.  The new color Nook will also have this capability.  While not exactly an audio book, the technology is pleasant when one’s eyes get tired.

Going Digital: The Future of College Textbooks?

     Are digital textbooks an advantage?  They are cheaper, but one must know what is being purchased.  Used books cost 75% the cost of a new book.  If either is sold back to the college bookstore, the student usually receives 50% of the cost of a new book if the book will be used again.  Many college bookstores are starting rental programs for textbooks.  Books can be rented for around half the cost of a new book.  However, if the book is not returned, the student is charged up to the cost of 75% of the new price of the book.  Payment is assured because students have to keep a credit card number on file.  Digital books are usually around the same price as a rental.  These books disappear from the student’s computer or reader after the semester ends.  Some licensing restrictions can be onerous and the publishing companies are in control.  Sometimes textbooks are not downloaded onto a student’s reading device.  This makes a web connection a necessity to access the book.  Some companies only allow access to a few chapters at a time.  There will also be restrictions on photocopying and lending is not an option.  In short, student should not expect the same options of use that they have with a physical book.  Ownership has advantages.  

     Digital books do have disadvantages.  One very annoying disadvantage is that words are not always spelled correctly and sentences are not always constructed properly.  Some of these errors boggle the mind as to how they can even occur.  Other errors seem to come from the scanning process that is used.  For example, this reader of digital books has noticed that what should be an F is sometimes a P and commas can be periods.  It seems odd to have obvious errors in digital books when the print versions are accurate.  It would be very difficult if these errors were in textbooks or children’s books!  Digital books must be read with a reader.  Readers will fail and need to be replaced over time.  This expense has to be factored into maintaining a digital bookshelf.  The Nook and iBooks record actual pages.  Kindle books do not.  This could be a problem for a teacher who likes to refer to page numbers in books.  As businesses maintain backup copies of the books people purchase, the businesses also have peoples’ reading lists.  Interesting profiles of people could be built by adding information from reading lists.  This raises privacy concerns and questions concerning how companies will use or sell these reading lists.

     The e-readers each seem to be looking for their own place.  The Kindle comes with either a seven-inch screen or the larger version that is approximately the size of an iPad.  Amazon has many digital books and, compared to Apple and Barnes and Noble, Amazon has the most current books in digital form.  Amazon is not going the direction of a backlit color tough screen on a multipurpose device.  Color e-ink is still in development, but Amazon may be heading in the direction of a more dedicated reading device with this technology. E-ink is easiest on the eyes and most like the printed page of a book.  The Kindle provides free 3G or WiFi service but this is mostly just to access their store and buy books.  Barnes and Noble, mid November, will begin selling their color touch screen backlit readers.  They hope apps are developed for the reader and it develops into a multipurpose device.  It will come with Pandora radio and the ability to play some games and surf the web.  It will only be a WiFi device.  This makes sense as no one will provide free 3G service for constant web surfing.  Free WiFi is available while in their stores.  How do they distinguish themselves from iPads in the minds of purchasers?  They have actual brick and mortar stores that the other two companies do not have.  This is an advantage to people who like to go to their bookstores. Nook owners received a free tall smoothie this week from their in-store coffee shop.  The drink can be enjoyed while using their free Wifi.  Any book in digital form can be read for an hour each day while in the store.  In theory, one could read an entire book without purchasing it if one went to the store often enough.  Despite preferring the iPad, this writer bought one of the first Nooks and will also purchase a color Nook next week despite the lack of young children.  There is something magical about having a reading device tied into one’s favorite store.  Currently they are the only ones who allow some of their books to be lent to other Nook holders, although Amazon may go in this direction also.  Barnes and Noble has the most digital books, although more of their collection is comprised of classics.  They are better than Amazon or Apple at offering specials of free current and classic books.  This reader was able to build an impressive digital library quickly thanks to the company’s free book offers.  The iPad has the nicest reader with books whose pages actually turn as one reads.  They have the least number of digital books to choose from and do not always get a current best seller that the other two companies are able to carry.  They do not yet store and back-up books for customers like the other two companies.  This is done on one’s computer through iTunes.  However, there is rumor the company may be moving in this direction with the start of their new app store for computers.  This reader also loves the fact that the Kindle and Nook apps can be downloaded onto the iPad.  Any books bought from either company can be read through their app on the iPad.  This reader has poor eyes, but the backlit screen never posed a problem.  In fact this reader enjoys reading in bed with the lights off just through the glow of the screen.  This cannot be done on the Kindle or current Nook.  One needs to attach a reading light.

     The iPad, Nook and Kindle are not the only ways to read digital books.  Nook and Kindle have apps for Andriod phones that allow for the reading of digital books.  The first response of most people to this option is that a phone is too small for reading.  Despite poor eyes, this reader reads very well by enlarging the print and using the larger screen size of the HTC EVO phone.  Nook and Kindle also have downloads so their books can be read on laptop and desktop computers.  These devices, however, are larger and less portable.  They do not deliver the same reading experience as a smaller device.  The success of the iPad, around three million sold in just a couple of months, has caused many companies to develop competing products.  There will be no lack of competition among the devices just mentioned.    

     While there are many advantages and disadvantages to digital books and e-readers, a final concern is how they might change the publishing industry and used bookstores.  The recording industry has gone through many changes because of digital music.  It is hard to see how publishers will not undergo similar changes.  Less people are now able to make a living selling music.  If a hardcover book sells for $28 dollars, a publisher could get $14 from the sale and the author $4.20.  If an e-book sells for $12.99, a publisher could get $9.09 and an author $2.27. (Trachtenberg 2010)  If a publisher makes less, the publisher will take fewer chances with new authors to lessen the potential for loss.  This will lessen signing bonuses as well as profits to authors.  These changes could easily lessen the number of people who can make a living from their writing as well as the number of new authors who can break into the business.  This will also affect people downstream from authors such as book agents. Digital books and licenses could potentially drive used bookstores out the market and even affect the ability to buy the used textbooks that students’ cherish.  Changes come to all industries and books will not be an exception.  If digital books did not result in changes, the lower number of pleasure readers certainly would cause changes.  There are no easy answers. 

Book vs. E-Book: Episode 1 - Touch & Smell

Book vs. E-Book: Episode 2 - In the Bath

Books vs. E-Books: Episode 3 - On the Bookshelf

     This writer prefers a multipurpose device like the iPad.  Walter S. Mossberg wrote a column for the Wall Street Journal in which he detailed his ten-day working vacation to Paris.  He left his laptop at home and only took his iPad. (Mossberg 2010)  This writer tried to duplicate the experience at the NSSA fall conference in Reno.  WiFi or a 3G connection is needed to fully use multipurpose devices or even purchase books from reading devices.  This writer bought a hub, Overdrive, from Sprint.  The hub costs $60 a month to operate!  AT&T advertises cheaper prices to connect the iPad to the web ($30), but the charge must be added to their phone contract.  This would be fine if one were in the AT&T service area.  The device takes the phone signal and turns it into a WiFi signal.  Multiple devices can use the web at the same time from the hub.  The 3G connection on mobile devices is supplied by AT&T.  I’m sure it is a fine company, but their signal does not reach the river valley this writer lives in.  Inside a house in the river valley, the only connection options are through a wire or to purchase an amplifier for the phone signal and a hub.  In the big city of Reno and everywhere else on the trip, the hub needed no amplification and it was a true joy.  The iPad was connected literally everywhere and could even access a home computer.  Access was had the entire trip for e-mail and web surfing.  In addition to reading books on the trip, added applications provided games, radio, multiple news sources, and, with hundreds of thousands of applications available, anything else desired.  The iPad has a person’s stored movies, books, calendar, notes, photos, music and other interests.  Trip photos were easily backed up to iPad.  This writer even produced a presentation on the iPad and it’s touch screen keyboard with ease through Apple’s iWorks applications for the iPad!  There were a couple of glitches.  The presentation could not be used without being transferred first to a flash drive. It is not easily accomplished from an iPad without a USB port.  The iPad Doc Connector to VGA Adapter tool was not an option.  Also, the iPad had to be turned off for takeoffs and landings on the plane while my neighbor continued to read her hardcover book! 

References

Barnes & Noble, (2010, November 1).  Retrieved from http://www.barnesandnoble.com.

Bobbs-Merrill Co. v. Straus, 210 U.S. 339 (1908).

Carp, R., Stidham, R., & Manning, K. (2011).  Judicial process in America.  Washington D.C.: CQ Press.

Digital Millennium Copyright Act of 1998, H.R. 2281.ENR amends 17 U.S.C. (1998).

DSC Commc’ns Corp. v. Pulse Commc’ns, Inc., 170 F.3d 1354 (Fed. Cir. 1999).

Essential Step Defense 1980, 17 U.S.C § 117 (a) (1) ( amended 1980).

First Sale Doctrine 1909, Copyright Act of 1978, 17 U.S.C. § 109 (1978).

Fowlerr, G. & Baca, M. (2010, August 25).  The abc’s of e-reading.  The Wall Street Journal, pp. D1, D2. 

Higher Education Opportunity Act of 2008, Pub. L. No. 110-315 (2008).

Kent, T. (2010, September 16). In Gibbon-Farifax-Winthrop, it’s iPads for all.  The Free Press, pp. A1, A8.

Krause v. Titleserv. Inc., 402 F.3d 119 (2nd Cir. 2005).

MIA Sys. Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993).

Mossberg, W. (2010, September 23).  An American in Paris says au revoir to his laptop.  The Wall Street Journal, pp. D1, D4.

Reagan, S. (2010).  Education chapter 161: digital textbooks to the rescue.  McGeorge Law Review, 41, 551-550.

Steiner, I. (2010, September 14).  How booksellers could be affected by Vernor copyright ruling.  Retrieved from
http://www.auctionbytes.com.

Straus v. Victor Talking Machine Co., 243 U.S. 490 (1917).

Trachtenberg, J. (2010, September 28).  Authors feel pinch in age of e-books.  The Wall Street Journal, pp. A1, A18.

Triad Syst. Corp. v. Se. Express Co., 64 F.3d 1330 (9th Cir. 1995).

United States v. Wise, 550 F.2d 1180 (9th Cir. 1977).

Vernor v. Autodesk.
         Vernor I, 555 F. Supp. 2d 1164 (W.D. Wash. 2008).
         Vernor II, NO. C07-1189 RAJ (W.D. Wash. Sept. 30, 2009).
         Vernor III, NO. 09-35969 (9th Cir. Sept. 10, 2010).

Wall Data, Inc. v. Los Angeles County Sheriff’s Dept., 447 F3d. 769 (9th Cir. 2006).

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