In a move that will be welcome news to publishers and other rights holders, advocate general Maciej Szpunar has ruled sites such as Tom Kabinet that sell second-hand ebooks "unlawful under EU law."

Zoey Forbes, technology, media and entertainment associate at law firm Harbottle & Lewis, said: "Rightsholders of digital works protected by copyright, such as ebooks, music downloads, films and games, will welcome the advocate general's Opinion that the resale of ebooks is unlawful under EU law. The opinion also acknowledges the risks to rightsholders that may arise from a second-hand market for ebooks, including cannibalisation of the primary market and the increased risk of piracy. Although the opinion is not binding on the CJEU [European Court of Justice], it is rare for the CJEU to take a radically different stance, and we therefore expect the CJEU to reach a similar conclusion in its upcoming judgment."

However, the advocate general also noted that there might be justifications for the resale of ebooks, prompting concerned comments from the Federation of European Publishers (FEP). Rudy Vanschoonbeek, the FEP president, said: "The Court of Justice ruling in the present case will have a significant impact on the development and licensing of innovative new services. If the court were to interpret current EU law according to advocate-general's Opinion, i.e. allowing for the principle of exhaustion to be used in relation to digital services, it risks standing in a way of the development of new business models.



"In the U.S., the Supreme Court has denied the petition of ReDIGI (an online marketplace for digital services i.e.: digital music, eBooks, games, apps, software) to review the Second Circuit's refusal to apply the First Sale Doctrine to the transfer of digital music files. In European legal terms, this means that the U.S. Courts have confirmed that there can be no exhaustion for digital services. In a globalised market, the rules should be identical."

This article originally ran in the U.K. trade publication BookBrunch.