The Dutch secondhand ebook marketplace Tom Kabinet has been ordered by a court to shut up shop this week, and is currently scrambling to get rid of possibly illegal stock so it can keep going.
As you may recall, Tom Kabinet started up in June 2014, predictably causing consternation in the country’s publishing industry — this is not how things currently work with digital goods, as terms tend to say people are buying only licenses to consume ebooks or audio files or what have you.
In July, a court refused to give the publishers an interim injunction against Tom Kabinet. However, on Tuesday the Amsterdam Court of Appeal produced a mixed ruling that said the site had to close down within three days or pay a daily fine of €1,000 ($1,160) – but also that Tom Kabinet’s business model appeared to be legal in principle.
Tom Kabinet’s justification for existing is the tantalising UsedSoft v Oracle ruling of 2012, in which the Court of Justice of the European Union (the EU’s highest court) ruled that customers who had bought a license for downloadable software could sell it on, just as if they had a boxed copy, no matter what the terms and conditions say.
The few European local courts that have subsequently tackled the issue have struggled with the implications of the ruling, particularly its reach. A court in Germany ruled in 2013 that it doesn’t cover ebooks and audiobooks. So far the Amsterdam courts have tentatively disagreed, saying that it’s certainly not clear that the CJEU ruling doesn’t apply to ebooks, and arguing that the CJEU may have to clarify its position in some future referral.
However, the appeal court did agree with the publishers this week about the fact that Tom Kabinet didn’t have sufficient barriers to people “reselling” illegally downloaded books through its platform. That’s why it told Tom Kabinet to shut down – much to the delight of the publishers — at least until it can shape up.
Therefore, Tom Kabinet co-founder Marc Jellema told me on Wednesday that the site is currently cleansing itself of all ebooks that it cannot prove are 100 percent legal. Tom Kabinet already watermarked the books it sells (which are all in the DRM-free ePub format) so that no-one can try selling the same thing twice through the platform, but now it’s going to have to ask sellers for paperwork.
“Technically there is no watertight way to differentiate between a legal and an illegal ebook,” Jellema said. “In order to guarantee only legally owned ebooks are on Tom Kabinet, we have to revert to ask a proof of purchase from our users. We are currently working to get that in place asap.”
This will probably have a significant impact on Tom Kabinet’s stock, though how much is yet to be ascertained. According to Jellema, so far Tom Kabinet has managed to convert more than 6 percent of its traffic to account sign-up and revenue, and its collection covers over two thirds of the Dutch Top 100.
“After the court ruling, that number is bound to change to a lower percentage,” he said. “We are now actively working on plans to get the number of relevant titles back on a respectable percentage.”