Dutch courts lets ebook reseller stay online

Dutch publishers wanted the site taken offline for copyright infringement

Dutch publishers have failed in their efforts to immediately close down ebook reselling site Tom Kabinet.

The Amsterdam District Court ruled Monday that the reseller can stay in business, after the Dutch Publishers Association (DPA) filed a preliminary case at the beginning of July to urgently close the site for copyright infringement.

Tom Kabinet offers a platform that it says lets users legally sell used ebooks. Sellers have to declare they obtained their copies legally and agree to delete their versions when a sale is made. While the service has no way to verify whether a copy is legal or whether copies were deleted by their original owners, it does add a water mark to the ebook before it is sold in order to track down possible illegal distribution.

Tom Kabinet argued that its activities are legal under a 2012 ruling by the Court of Justice of the European Union (CJEU) that permitted the trading of "used" software licenses.

The Amsterdam court said that while it's unclear whether or not the site infringes copyright when considering the case law of the CJEU, closing down the site immediately would be a step too far.

It cannot be excluded that the same rules apply to ebooks as apply to paper books, which are allowed to be sold secondhand in any case, the court said.

Moreover, Tom Kabinet's operation cannot be equated with "pirate websites," the court said. It also denied the request for a ban on the site because the publishers "shy away from all negotiations" with Tom Kabinet while the site's intention is to work with the publishers to mitigate the problem of illegally downloaded ebooks.

A copyright lawyer who represents the publishers, Christiaan Alberdingk Thijm, said he was "very disappointed" by the ruling.

The judge suggested that the publishers should start legal proceedings in which questions about the issue could be referred to the CJEU, Alberdingk Thijm said, adding that such proceedings can take years. "Due to this decision, publisher damages continue to mount," he said.

The publishers haven't decided whether to follow that course, he added.

While the court did not decide if the 2012 ruling -- which favored UsedSoft over Oracle -- applies to ebooks, this decision means that Tom Kabinet can continue to offer cheaper ebooks to its users, said Marc Jellema, one of Tom Kabinet's co-founders.

Loek is Amsterdam Correspondent and covers online privacy, intellectual property, open-source and online payment issues for the IDG News Service. Follow him on Twitter at @loekessers or email tips and comments to loek_essers@idg.com

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