Legal Issues

by Mike Masnick

Filed Under:
copyright, harry potter


Potter Publisher Says Selling Legally Obtained Copy Is Illegal

from the it's-magic-lawyer-speak-for-bullying dept

The hysteria over tonight's launch of the latest Harry Potter book has been covered to death in many places, but it still amazes us how ridiculous JK Rowling and her entourage are about the way they view intellectual property surrounding the books. Rowling has said she's against putting out an eBook because it would be pirated, even though that makes almost no sense. The book gets scanned and put online anyway, meaning anyone who finds it more convenient to read an electronic copy has to get an unauthorized copy rather than paying for a legitimate copy. And, of course, even booksellers are pointing out that they're unlikely to lose a single sale over scanned versions that are found online.

However, the Potter crew is still going nuts over the secrecy of the book, claiming intellectual property rights that they don't actually have. It's no secret that there's an extensive process that the publisher makes booksellers go through to avoid an "early" leak of the books, but what happens if a legitimate copy of the book actually does get out? That's what happened when an engineer received a copy of the book earlier this week when an online bookstore accidentally shipped it out early. He quickly (and smartly) put it up on eBay where the price shot up to $250... and then, JK Rowling's lawyer demanded eBay take the auction down as infringing on its rights. What rights? That's not clear. The book is legitimate. The sale to the guy was legitimate. The bookseller may have violated an embargo from the publisher, but that's between the bookseller and the publisher -- not the guy who ended up with the book. Once the book has gone out to the guy he has every right to sell it, and JK Rowling's lawyer was wrong for demanding it be taken down and eBay was wrong in agreeing to take it down. This is simply a case where they seem to be claiming copyright privileges that simply don't exist.

Reader Comments (rss)

(Flattened / Threaded)

  1. identicon
    discojohnson, Jul 20th, 2007 @ 2:24pm

    counter sue

    he should counter sue for damages. he won't make $250 now because of the illegal (?) takedown.

    reply to this | link to this | view in thread ]

  2. identicon
    Who What When?, Jul 20th, 2007 @ 2:28pm


    Too Bad Mr. Collier did not actually suffer any damages. It would have been interesting to see how this played out in court. If the distributer had legal ownership of the copy when it accidentally shipped it, then I suspect that forcing the termination of the auction would have been cause for action had Mr. Collier been damaged.

    reply to this | link to this | view in thread ]

  3. identicon
    blugart, Jul 20th, 2007 @ 2:40pm

    ...In an odd twist of fate, Dumbledore kills Snape when we find out the headmaster pictures are unnaturally heavy...

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, Jul 20th, 2007 @ 3:05pm

    Re: Darn

    Yes, but it is interesting how many cases where people haven't actually taken any damages arrise where they either win or force a settlement so they still win. It works for the RIAA/MPAA, why not this guy?

    reply to this | link to this | view in thread ]

  5. identicon
    GoblinJuice, Jul 20th, 2007 @ 3:11pm

    Here's the deal: they know they don't have a legal leg to stand on, but they realize that most companies won't fight them. It's easier to give up than fight on principle.

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, Jul 20th, 2007 @ 3:20pm

    He can't even really fight it anyways.
    by time he wins, the book will be out and he would of lost his advantage.

    I don't even see it being an advantage today, you would still get the book quicker buying it tonight then waiting for it to be delivered.

    reply to this | link to this | view in thread ]

  7. identicon
    Posterlogo, Jul 20th, 2007 @ 3:26pm

    Flawed logic

    Your reasoning is way off. The sale to the customer was not valid. There are many instances of timing sensitivities in the law. The publisher has a right to "embargo". Now, with that said, it is unfortunate to go after the guy about this. This will not do them much good, and it will soon be a moot point anyway. The tone of your post, however, makes it pretty clear you have practically no journalistic ethic whatsoever. You're pretty clearly biased.

    reply to this | link to this | view in thread ]

  8. identicon
    Erv Server, Jul 20th, 2007 @ 3:30pm


    Ebay needs to get a backbone, and some lawyers that know the law.

    reply to this | link to this | view in thread ]

  9. identicon
    The Warlock of Shikelare Tower, Jul 20th, 2007 @ 3:35pm

    RUBBISH! Harry Potter is the devil! I banish him from teaching our children about wizardry and witch-craft! The writer of the series should be burned at the stake for her witch-doings! To sum it up, Harry Potter is a prancing fairy with a broom!

    reply to this | link to this | view in thread ]

  10. identicon
    Petréa Mitchell, Jul 20th, 2007 @ 3:36pm

    Shoot first, ask questions later

    I think this is all going to look very silly if it turns out it wasn't the retailer's fault he got it early at all, but rather the delivery company's. (I don't know exactly what's arrangement was, but I know at least a couple other online retailers had the books all boxed up and ready to go well in advance, and their delivery companies agreed to hold onto them until an appropriate date.)

    reply to this | link to this | view in thread ]

  11. identicon
    Anonymous, Jul 20th, 2007 @ 3:38pm


    "All was Well" - The last sentence in the book!

    reply to this | link to this | view in thread ]

  12. identicon
    Zerhack, Jul 20th, 2007 @ 3:44pm

    Flawed what?


    What right to embargo does a publisher have? please cite the law you use as a source. Sounds like Hogworts Hogwash to me.

    If I buy an ugly painting from you at your crappy garage sale and it turns out to be a lost Jackson Pollock, I can sell it for whatever I like.

    Likewise any CDs, DVDs Cassettes, books, furniture, cars, houses anything I *OWN*, I can sell for whatever the traffic will bear and there isnt a single thing you can do about it.

    reply to this | link to this | view in thread ]

  13. identicon
    Sneeje, Jul 20th, 2007 @ 5:19pm

    Re: Flawed what?

    You are correct, the other poster is not. Timing sensitivities have nothing to do with it. Contract law is only revokable if both parties have made an error in fact. When only one party has made an error (i.e., the distributor), there is no recourse against the other party and the contract is considered to be legally executed (complete). The only recourse the publisher has is to seek damages against the distributor for breach of their contract.

    reply to this | link to this | view in thread ]

  14. identicon
    Matt, Jul 20th, 2007 @ 5:43pm

    Re: Re: Flawed what?

    And let's not forget the main issue; the consumer, not being a party to any contract (that may or may not contain an embargo clause) between the seller and the publisher, is under no obligation to abide by it. The most amusing part about this, though, is that the takedown notice was served on ebay over 16 hours after the sale had been completed. It's one thing to act without any understanding of the law, but to be so hilariously bad at it really takes the cake.

    reply to this | link to this | view in thread ]

  15. identicon
    Buzz, Jul 20th, 2007 @ 9:37pm


    You cannot own information. If you do not want information divulged then keep it in your brain and never speak or write it.

    There are more honest people in the world than these big companies give us credit for. My neighbors are out waiting in line to pick up the book right now. If I called them up on their cell and told them I could obtain a free digital copy, they would not move from their spot. The book is better, and they need to have faith in their product.

    reply to this | link to this | view in thread ]

  16. identicon
    inc, Jul 20th, 2007 @ 11:23pm

    If I were that guy I would've tried contacting that user and seeing if a side deal outside of crappy ebay would happen... or better yet throw that bitch on craigs list wih a shorter auction time. By the time they tried to server a take down con it would be too late...

    reply to this | link to this | view in thread ]

  17. identicon
    Corey, Jul 21st, 2007 @ 10:17am

    i find the issue to be

    There is no question that the sale of the book over ebay is illegal. The issue is simply that the original transaction (with the early shipment date) was illegal; therefore, the person, not to their fault, who purchased the book did not do so under legal terms. He has no right to sell book he had received under illegal pretense.

    Here's one way to put it: if you someone stole a car and sold it to you, you do not actually own it. It still belongs to the original owner. If you then sold the car to someone else, the sale would not be legit. Ownership cannot change hands under the breaking of an agreement. Just because the guy who received the book early was under no fault for breaking the law, he still has no property claim to the book and in turn, cannot sell it.

    reply to this | link to this | view in thread ]

  18. identicon
    ryder242, Jul 21st, 2007 @ 10:47am

    intellectual property

    But, unless the credit card was stolen, it was a legal transaction. So the book was not illegally obtained. It was a good faith transaction; he owns the physical copy of the book, just not the intellectual property contained with in the book. If he wanted to burn the book in fireplace no one would stop him, it’s his physical copy of the book. So as long as he is not trying to sell what is covered under IP the seller is fine.

    reply to this | link to this | view in thread ]

  19. identicon
    Buzz, Jul 21st, 2007 @ 12:24pm

    Re: i find the issue to be

    ryder242 is correct. Your example, Corey, refers to the selling of stolen goods. However, this Harry Potter book was legally obtained. The book vendor made the mistake of sending the book too early, but that not is not the customer's burden to bear. He paid for it, received it, and now has free reign over what he does with it. He is not the one who is bound by contract. The publishers can yell at or sue the book vendors all they want for such mistakes, but the customer now owns that book. Since he never agreed to any contract from the publishers stating that he would not sell the book prior to July 21, he is free to sell it at any time.

    While I do not know the letter of the law in this instance, I would imagine that the customer could sue for damages since he technically had a sales agreement over eBay (each bid is essentially a promise to purchase if the bidder wins), and the publisher came in and abused their power in shattering that sale.

    This all comes back to the ridiculous amount of power people feel they have over intellectual property. I hate the whole concept of selling contracts with products that restrict resale, modification, etc. I do agree with voiding warranties and whatnot based on the customer's actions (that is a power that manufacturers do possess), but if I pay for an item off the shelf, I will do whatever I want with it. If I want to purchase a laptop and then throw it off a building or sell it again on eBay, that is my prerogative.

    reply to this | link to this | view in thread ]

  20. icon
    Martin O'B (profile), Jul 21st, 2007 @ 4:26pm

    Re: Re: i find the issue to be

    There are 2 issues that need to be separated here:

    It was legal to sell the book, yet was likely a violation of the (original) seller's contract. The contract violation is likely a civil matter, and is between the publisher & shipper, and has nothing to do with the guy selling it on Ebay.

    reply to this | link to this | view in thread ]

  21. identicon
    corey, Jul 22nd, 2007 @ 2:11pm


    Where we differ is that the transaction was valid. One of the requirements for implicit contracts is that the seller must intend to sell it according to agreed upon terms. The seller mistakenly sent the book early. The intent to sell it at that date was not there. The transaction is not valid.

    reply to this | link to this | view in thread ]

  22. identicon
    n3rdkw, Jul 22nd, 2007 @ 4:16pm

    Doesn't anyone realize how ridiculous the "Potter crew" is?

    FFS, why is this mega-million author so f***ing obsessive about this? Lets drop the legality of the problem for now and look at how their handling of the situation affects public opinion, not that it matters much. I was going to purchase one after a few weeks after the release, but the way they seem to protect their "intellectual right" really pisses me off and have therefore compelled me to never buy that f***ing book

    reply to this | link to this | view in thread ]

  23. identicon
    BTR1701, Jul 23rd, 2007 @ 5:00am

    Re: Flawed logic

    > The sale to the customer was not valid.

    I have no idea where you got this idea. In all my years of law school and practicing as an attorney, I have never heard of such a thing. The guy paid Amazon (or whoever) for the book. They shipped it to him. Valid contract. End of story. The fact that Amazon (or whoever) shipped it early and breached its contract with the publisher has no bearing on the validity of the contract with its customer. And since the customer is not in privity of contract with publisher, the customer has no duty or responsibility or liability whatsoever to abide by the publisher's timing restrictions.

    > There are many instances of timing
    > sensitivities in the law. The publisher
    > has a right to "embargo".

    Yes, but that's between the publisher and the retailer. Not the customer. If the publisher thinks the early release has damaged them in some way, their remedy is to sue the retailer who released the book early, not take action against the customer.

    reply to this | link to this | view in thread ]

  24. identicon
    Sanguine Dream, Jul 23rd, 2007 @ 6:10am

    I'm with comment #23...

    frankly I think the whole going after ebay and the customer thing was just for publicity. How likely would we have heard about this if the publisher had just gone after Amazon?

    reply to this | link to this | view in thread ]

  25. identicon
    BTR1701, Jul 23rd, 2007 @ 6:14am

    Re: Books vs. Electrons

    > My neighbors are out waiting in line
    > to pick up the book right now. If I
    > called them up on their cell and told
    > them I could obtain a free digital copy,
    > they would not move from their spot.

    That's because for many book connoisseurs, having the physical tome in their hands is a significant part of the pleasure of reading. And even when the reading experience is over, it's nice to have nice hardbound copy to place on the shelf along with all the others. That's something no e-book or digital file can accomplish.

    Reminds me of a scene from a wonderful TV series with a misleadingly juvenile title, Buffy the Vampire Slayer, where the school librarian and the school computer teacher are arguing technology vs. traditionalism:

    Honestly, what is it about computers that bothers you so much?

    The smell.

    Computers don't smell, Rupert.

    I know. Smell is the most powerful trigger to the memory there is. A certain flower or a whiff of smoke can bring up experiences long forgotten. Books smell... musty and rich. The knowledge gained from a computer has no texture, no context. It's there and then it's gone. If it's to last, then the getting of knowledge should be tangible, it should be... smelly.

    reply to this | link to this | view in thread ]

  26. identicon
    JustMt, Jul 23rd, 2007 @ 7:24am

    The Right Of First Sale

    Clearly says he has the legal right to resell the book, at least here in the US.

    IANAL, but my wife was in law school

    reply to this | link to this | view in thread ]

  27. identicon
    Rick Sarvas, Jul 23rd, 2007 @ 11:14am

    This was just a stalling tactic

    In the end, it does not matter if auctioning of the book on eBay was legal or not. All the Rowling lawyers were trying to accomplish by getting the auction pulled was to stall for time. Now that the book is finally out, they can sit back and say "my bad", admit that they *might* have been a bit hasty with the takedown notice, and allow the auction to continue. Since there was not enough time after the takedown notice for the guy to go through the appeal process with eBay (before the book was released to the public), the lawyers accomplished what they wanted by preventing a rogue copy of the book from being released early.

    reply to this | link to this | view in thread ]

  28. identicon
    Charlie, Jul 23rd, 2007 @ 11:51am

    No one was damaged, except possibly ebay.

    This just helped drive publicity for HP to remind techdirt readers that the book is being released. Most people, even a large number to TD readers, that were going to buy the book are not going to stop because of this abuse.

    The discounter got their name referenced. That works for them.

    The seller wasn't damaged, he had already completed the transaction 17 hours before eBay processed the payment.

    eBay canceled the listing and refunded the fees. The seller came out ahead, and eBay not paying enough attention just gave back money they otherwise could have kept.

    reply to this | link to this | view in thread ]

  29. identicon
    Buzz, Jul 23rd, 2007 @ 1:13pm

    Re: how

    The transaction was a violation of terms, but it was quite valid. Neither the publisher nor the book seller has the right to take the book back or dictate how it is handled. Why do you think there are huge fines on the seller's part for violation of such terms? There is NEVER any mention of customer penalties. I used to work retail, and if we ever accidentally sold a movie before its street date, the matter was between us and the creators of the movie. There is no part of the battle plan that states we are to hunt down and recover the sold item. The item belongs to the customer.

    Corey, a transaction is only invalid if there was illegal activity. Breaching a contract is technically legal... it just comes with severe consequences. ;)

    reply to this | link to this | view in thread ]

  30. identicon
    Gregg, Jul 25th, 2007 @ 12:53pm

    Has anyone calculated the bigger picture? Scholastic Books and JK Rollings publisher depend upon publicity... even free publicity. They all knew there there would be quirks or faults in the system.
    Every one of these faults or quirks happen to highten the demand for the product. Free publicity... They should be charging JK Rollings and company for the free publicity and receive thanks. Either way the case becomes moot when the product is finally released.

    reply to this | link to this | view in thread ]

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