Are Publishers Liable For Lost eBooks If Borders Dissolves?

I am not a lawyer, but it seems to me those of the Big 6 publishers who have been playing the price-fixing Agency Model racket have left themselves wide open for class-action lawsuits if their “agents” go out of business and lose the eBooks of their customers.

Traditionally, this has been the sales chain in print publishing:

It was also that way with eBooks until recently. This traditional model insulated publishers from the customer relationship. Once they sold their product to the middlemen, the customer had this relationship to deal with if any problems developed:

And this was the case with eBooks too. If an eBook retailer went under, the only recourse a customer had was against the retailer itself in whatever manner that was possible (such as bankruptcy court).

Until Apple entered the picture and proposed the Agency Model, which allowed publishers to set their prices. The Agency Model changed the entire chain of liability. Publishers are saying, in effect, “These books belong to us — not to any middleman or retailer — and you sell them at the price we set and simply get a sales commission.”

That new sales chain now looks like this:

Now what happens when the “Agent” disappears? When, basically, the agent of the publisher goes into dissolution — as giant bookseller Borders might? The relationship is revealed to actually be this:

It seems to me that if Borders goes under and people no longer have access to their eBook purchases via their Borders online Library, that the publishers are now legally liable for replacing those eBooks in perpetuity.

Attorneys, starting reviewing your case law and precedents!

And the Big 6 of publishing had better start consulting their own attorneys too.

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9 Comments

Filed under eBooks: General, Pricing

9 responses to “Are Publishers Liable For Lost eBooks If Borders Dissolves?

  1. Pingback: Are Publishers Liable For Lost eBooks If Borders Dissolves? | The Digital Reader

  2. Pingback: Could Authors Be Liable to Consumers If an eBookstore Dies?: Tech News and Analysis «

  3. Pingback: Could Authors Be Liable to Consumers If an E-Bookstore Dies?

  4. Mark

    With the growth in ebooks market, I think it more likely that Kobo is acquired by another business in the event that Borders goes belly up, in which case the new owners of Kobo would be liable to continue the service.

  5. Pingback: Fastest growing news network » Could Authors Be Liable to Consumers If an E-Bookstore Dies?

  6. The economy and trends mean that Kobo will not go out of business thank goodness

  7. I’ve lost all my Borders Ebooks, and Kobo is telling me that I was supposed to transfer them by Sept 27 2011. I NEVER received an email stating there was a specified date that this needed to be done. In FACT on Kobo’s app there is a button that say “Transfer your Borders ebook to Kobo”, when I try this option it only gives me an error message. I’ve complained, and called and to no avail. I’m out money and I’m PISSED!! anyone have any advice on what I should do?

    • mikecane

      You’ve lost your eBooks then. There was plenty of warning all around the Internet for people to transfer their eBooks.

      Barnes & Noble currently has some information they purchased from Borders. But I doubt any appeal to them would result in having them replace your lost books.

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