Secondhand ebookstore Tom Kabinet can stay online, Dutch court rules

Tom Kabinet

A Dutch secondhand ebookstore has successfully defended a court case brought about by the country’s publishers’ association, which argues that ebooks cannot be legally resold.

The site, Tom Kabinet, opened shop a few weeks ago, basing its legality on a 2012 ruling by the Court of Justice of the European Union (CJEU) in the case of UsedSoft v Oracle. That case had to do with the resale of licenses for downloadable software, but Tom Kabinet contended that the CJEU’s ruling in favor of resale extends to digital media such as ebooks as well.

The Dutch Publishers Association (NUV) disagreed, pointing to a 2013 ruling by a court in Bielefeld, Germany, which held that the CJEU ruling only applied to software.

On Monday, the Amsterdam district court sided with Tom Kabinet – sort of. The court refused to give the NUV an interim order shutting down the site, saying the implications of the CJEU ruling weren’t clear enough to allow this. The judge also noted that Tom Kabinet is trying to work with the publishers to combat ebook piracy, and said it couldn’t be equated with piracy websites.

Indeed, the site has a “Friends of Tom” program that would compensate (via “donation”) authors and publishers for the secondhand sale of their books – an interesting idea that isn’t replicated in the traditional secondhand market for physical books – but the NUV contended that Tom Kabinet gave publishers no notice before going live.

The association is also deeply skeptical of Tom Kabinet’s “honor system,” through which sellers of secondhand ebooks self-certify that they have purchased the ebooks legally and have deleted their own existing copies (a precondition of the UsedSoft ruling).

According to IDG, the NUV was not pleased with the judge’s suggestion that the association take its case to the CJEU. The NUV said this could take years, during which “publisher damages continue to mount.”

Tom Kabinet co-founder Laurens van Hoorn told me that business was booming. “The platform is actually growing so fast that we’ve had some technical issues with the availability, but we’re fixing that as we speak,” he said. Whereas new ebook prices in the Netherlands tend to be around the €14 ($19) mark, he noted, most of the secondhand ebooks being sold on Tom Kabinet fall into the €3-€8 bracket.

I reckon the CJEU will have to revisit this argument at some point. The German and Dutch rulings are at odds with each other, and Europe is supposed to have a single digital market. Digital media resale rights are a big issue over in the U.S. too, so watch this space.

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