The Curious Case of Tom Kabinet

Tom KabinetIn the recent past The METISfiles reported on traditional content publishers. We think they are an endangered species because they don’t seem to be able to come up with digital publishing value-add.  And now there is Tom Kabinet, another challenger to the publishing industry. In the world of books an e-book format is considered a digital service. But just like physical books an e-book service can be consumed time and again. However, consumers of these digital services are not allowed to transfer this service after they are done with it. As we have seen with music and video files these are not allowed to be redistributed. Nevertheless Tom Kabinet has decided to take on the challenge and just opened up a second hand e-book site where people can buy and sell legal e-book copies. To take cover against legal measures from publishers Tom states that he only buys legal e-book copies (only e-pub format) and marks them with a second digital watermark before he puts them on sale. Indeed it is a marketplace for e-books.

The difference between a second hand dealer and a fence, in theory, is clear. The second hand shop sells legally purchased items and a fence sells stolen goods. But how do we know whether the items sold by either of them are stolen or not? We don’t of course. For this reason Tom Kabinet only buys e-pub books with DRM on it from people with a bank account. This way he can point out who he is buying from and that it is an original copy attesting to the principle of ‘one copy one use’. But how original is a digital copy?

Once an e-book is sold to a second hand book dealer it doesn’t necessarily mean that it has disappeared from the original buyers end-user device. Publishers of the NUV (Dutch Publishers Association) accuse Tom Kabinet of being a site for pirated e-books and have ordered him to stop his activities. Tom Kabinet has not given in and relies on the EU ruling of the UsedSoft versus Oracle case that states that exhaustion of intellectual property rights also applies to intangible goods like a copy of a computer program. The case gave users of second hand Oracle software licenses the right to download a copy from the copy-right holders (Oracle) website. Tom states that it gives him the right to redistribute used e-books as software and digital content are very much the same thing.

The Tom Kabinet case clearly illustrates that, again, we find it difficult to cope with digital information within our current legal system. However – slowly but steadily – we are pushing our legal institutions through innovative digital cases to make things clear with rulings on digital information, digital business and digital privacy in our digital era. As for the publishers, they continue to show more fear for losing out in the digital economy than appetite for digital opportunity.