Dodgy salesmen?
Do you think you're "buying" an ebook? If so, you may want to think again
Image: CC-AT-SA Flickr: rjs1322 (Rob)
Amazon’s Kindle product page quotes professional reviewers as saying: “allowing you to click, buy, and start reading your purchases in 60 seconds”; "the next time you hear about a great book, just search, buy, and read”; “simply buy and download the whole book with 1-Click”.
It’s pretty clear, right? Amazon sells you ebooks. Simple!
Or does it?
“Use of Digital Content.
Upon your download of Digital Content and payment of any applicable fees (including applicable taxes), the Content Provider grants you a non-exclusive right to view, use, and display such Digital Content an unlimited number of times, solely on the Kindle or a Reading Application or as otherwise permitted as part of the Service, solely on the number of Kindles or Other Devices specified in the Kindle Store, and solely for your personal, non-commercial use. Unless otherwise specified, Digital Content is licensed, not sold, to you by the Content Provider.
“Neither the sale or transfer of the Kindle to you, nor the license of the Software or Digital Content to you, transfers to you title to or ownership of any intellectual property rights of Amazon or its suppliers or the other Content Providers. All licenses are non-exclusive and all rights not expressly granted in this Agreement are reserved to Amazon or the other Content Providers.”1
Think again! You’re not actually buying something. You’re licensing the use of an ebook. You can’t buy a licence. You pay a fee, they share some of their rights with you. This is a massive, massive difference between the physical books sold today, and ebooks. An ebook is not your property, it remains, at all times, Amazon’s property. You enter into a long-lasting contract with them, which is how, even after you’d thought the transaction was over, they can still require that, until the end of your life, you obey their terms, such as:
“Limitations. Unless specifically indicated otherwise, you may not sell, rent, lease, distribute, broadcast, sublicense, or otherwise assign any rights to the Digital Content or any portion of it to any third party, and you may not remove or modify any proprietary notices or labels on the Digital Content. In addition, you may not bypass, modify, defeat, or circumvent security features that protect the Digital Content.”1
Break any conditions of the agreement, and they will take back what you thought you’d bought. Or they could sue you for breach of contract. Or maybe even copyright infringement, which if you’re in the US, is particularly scary since (as we all know) they have statutory damages there: no need for Amazon to prove it actually suffered harm; they can claim arbitrary amounts from you anyhow.
In fact, they could deprive you of the ‘book’ which they told you that you were ‘purchasing’ even if you held up your end of the bargain perfectly. They already have, several times. They reserve the right to take what you paid for back if they want:
“Changes to Service. We may modify, suspend, or discontinue the Service, in whole or in part, at any time.”1
Got a problem with that, UK user of Amazon.co.uk? Take it to the courts of Luxembourg City, Dorothy!
“Disputes. Any dispute arising out of or relating in any way to this Agreement will be adjudicated in the courts of the judicial district of Luxembourg City, and you consent to non-exclusive jurisdiction and venue in such courts.”1
You may find yourself saying, "Waaah? But they said I was buying an ebook! It's all over the product page and checkout process! I thought that the repeated insistence on purchasing and buying meant that I was exchanging my money for something that becomes my property, not paying for a stinking licence!"
Well, tough luck.
“Complete Agreement and Severability. This is the entire agreement between us and you regarding the Kindle, Digital Content, Software, and Service and supersedes all prior understandings regarding such subject matter.”1
And you know what? If Amazon wants to make it a term of your ebook licence that you wear a party hat whilst reading it upside down, or make you pay again, and say thank you sir, then it can:
“Amendment. We may amend any of the terms of this Agreement in our sole discretion by posting the revised terms on the Kindle Store or the Amazon.co.uk website.”1
And remember, kids:
“Kindle is our #1 bestselling item for two years running. It's also the most-wished-for, most-gifted, and has the most 5-star reviews of any product on Amazon.com."2
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moopet:
Jan 13, 2011 at 11:16 AM
"Unless otherwise specified, Digital Content is licensed, not sold, to you by the Content Provider"
Everyone's known this since day one - it's not exactly breaking news.
But if you want to take the text to tast, then doesn't the "simply buy and download the whole book with 1-Click" and "buy now" text constitute "otherwise specified"? There might be mileage in that.
Otherwise, this is a story that's been going on for years and will almost certainly continue to waddle on until the world changes.
Nigel Hawthorn:
Jan 13, 2011 at 11:24 AM
This makes eBooks much more like software (usually licensed and not "sold") and less like a book.
We usually use the term "buy" for software, I guess we mean it in a genric term, though perhaps a lawyer would say we are all being sloppy for using the word "buy" when in both cases we are simply a licensee with limited rights.
lila:
Jan 13, 2011 at 11:48 AM
"...solely on the Kindle or a Reading Application or as otherwise permitted as part of the Service, solely on the number of Kindles or Other Devices specified in the Kindle Store..."
So does that mean you can not use the e-books you have "purchased" on other e-book readers, like that from Sony... surely this lock in is anti-competitive.
Given that Amazon dominates the market in e-books it will make damn sure that it will (continue to) dominate the market in e-book readers.
Jim Killock:
Jan 13, 2011 at 12:40 PM
The anti-competitive point is very important. DRM is not about keeping uses “honest”, given how easy it is to circumvent, it is about locking customers to products
Robert Neuschul:
Jan 13, 2011 at 04:57 PM
So, given that when buying a physical book, one is only buying a physical aretefact - the paper and bindings etc - and that the words or pictures reproduced in that artefact are constrained by legal and copyright controls which have much the same effect as those contained in the Amazon T&Cs, how is your wider argument sustainable?
Milena Popova:
Jan 13, 2011 at 06:18 PM
The below is based on US law becaues that's what I've got the reference for (http://www.zdnet.com/blog/bott/who-owns-your-digital-downloads-hint-its-not-you/2831), but I believe there are similar provisions in UK law. Any UK lawyers want to set me straight?
Here's the difference: When I buy a physical book or CD, something called the first-sale doctrine applies. It makes the item mine, and means that I can legally choose to give it away, resell it, lend it, etc., without needing to ask for the rightsholder's permission. Under Amazon's and iTunes' licensing arrangements for both music and ebooks, the first-sale doctrine doesn't apply because... well, because they haven't sold it to me.
Oh, that and I don't have to go sue Waterstone's in Luxembourg if there's a missing page in my hard copy.
Simples.
Robert Neuschul:
Jan 13, 2011 at 07:52 PM
Milena,
You make my point for me and also miss the major point at the same time: First Rights applies to the physical artefact - but it grants you NO rights whatsoever to make use of the content in any ways other than those which are explictly granted to you under normal IPR law for the purposes of reading or playing etc: you can't resell that content as your own work, you cannot broadcast any content without permission, you cannot [normally] even "play" or give a performance of the content in a public place to an audience without explicit permission, you can't quote or re-use the whole thing for your own purposes without the permissions of the author/publisher etc [although there are various implicit and explicit "fair use" rights in various IPR statutes around the world, some of which are also recognised under international WIPO Treaties].
First Rights don't impact on or have relevance for usage: they're entirely to do with ownership of and rights in the artefact - which is the medium of containment and/or transport or publication etc.
Your rights with respect to content are easily found: Open any commercially published book and you will find the applicable summary statements about the publisher's and author's copyrights somewhere or other; look at any commercially produced CD or DVD and it too will have appropriate copyright statements somewhere or other.
To recap: you never EVER own the content of any book or CD/DVD you bought at Waterstone's unless the author(s) and/or Publisher(s) explicitly say that you do and the transfer of that "right" to you was an explict term of contract at the time of purchase. All you ever "own" is the artefact - the media. That is the entire basis of IPR law throughout the world: it's what copyright means - the ownership and control of the right to copy and/or license any usage.
When you download media from the internet, be it from iTunes or Amazon, the situation is broadly similar: the mp3 or pdf [or other] file is the artefact, the content it contains is - the content. You can and should be able to treat the artefact in exactly the same manner as any physical artefact, subject only to the normal rules of law: move it around, lose it, let others use it [though not at the same time as you] etc etc.
Thus you [should] own the artefact, you NEVER own or have any rights in any content other than those explcitly granted under the publisher's and authors normal provisions at the time of sale.
What ORG [in the person of Jim Killock] appear to be claiming is that somehow or other Amazon's T&Cs go beyond those doctrines and the most common interpretations of IPR law to apply to the artefact itself. Which is a reading of their terms I find great difficulty in understanding or agreeing with. Hence my question to him, and my anticipation of a reasoned and well-founded reply.
Jim Killock:
Jan 14, 2011 at 09:23 AM
Hi Robert,
This article is of course written by a supporter, rather than ORG, although we’d agree there is an unfair balance in the way T&Cs and licence conditions are being used.
Of course rights to content are limited, although T&Cs in books and digital content may overstate the limits to those rights.
What we are concerned about is the power imbalance caused by claiming people are “buying” ebooks, while the ebook license is non-transferable, changeable and revokable.
Secondly, the vendor lock-in that is caused by tying people to a DRM format.
Thirdly, the lack of fair dealing and other rights in DRM products, the prevention of access to out of copyright material, and the difficulties in complaining.
And fourthly, the potential for some of the many incompatible DRM formats to stop being supported, and for customers using those formats to lose their investments; and the lack of any legal protection against this.
Hope that helps,
Jim
Robert Neuschul:
Jan 14, 2011 at 05:48 PM
Jim
Thanks for the reply: good points all, though I'm not automatically convinced by them. My apologies for overlooking the author's name and allocating the item to you.
"What we are concerned about is the power imbalance caused by claiming people are “buying” ebooks, while the ebook license is non-transferable, changeable and revokable."
This one I think is relatively simple and falls in the face of the Unfair Terms Act and various related statutes: I somewhat doubt that the licence claim is sustainable at law. However I happily concede that there's an element of doubt there.
"Secondly, the vendor lock-in that is caused by tying people to a DRM format."
Hmn; yes this is at least a theoretically nasty issue. Being practical though, it's not that different in terms of classification at a technical/legal level to a person buying music on a casette tape and then complaining that the vendor doesn't sell and won't supply you with the same content on DVD. All specific physical and digital media have constraints and limitations: the publisher isn't under an obligation to provide multiple media formats - it was our choice to buy the content in that specific media format. If one doesn't like the constraints or limits, don't buy the product.
"Thirdly, the lack of fair dealing and other rights in DRM products, the prevention of access to out of copyright material, and the difficulties in complaining."
This is more complex and not easily amenable to treatment as a single issue: fair dealing is, I agree, a fairly major issue - as instanced by the issue of Unfair Terms above; however access to out of copyright material is something else entirely. Why exactly is a publisher or a manufacturer of reading devices under an obligation to the public to deliver such access? I can agree that it's good common sense, good business sense, to do so; but that's hardly the same as an obligation. Make an analogy [knowing that all analogies are strictly limited in utility and shelf-life] - why would or should News International be obliged to give the readers of its Wall Street Journal access to the archive content of the Manchester Guardian from the years 1900-1914?
One can say much the same about the complaints issue: it's very poor business practice to make CRM into a complex and time-wasting process, but such poor CRM doesn't - in and of itself - make the company a bad company.
"And fourthly, the potential for some of the many incompatible DRM formats to stop being supported, and for customers using those formats to lose their investments; and the lack of any legal protection against this."
You don't have any "investment" protection if the paper used to manufacture the paperback you purchased from Waterstones crumbles to nothing after 3 years. You don't have any protection if the DVD you purchased delaminates and dies after a couple of years. Et. Seq. Merchantable quality in media - be they hardback books, paperbacks, CDs or DVDs etc - does not include provision for a lifetime warranty expressed in terms of YOUR lifetime. Why should it be any different for digital media? That's a serious question by the way.
I'll agree that it is - in the public interest - desirable for media producers and publishers to deposit their DRM key or unlock mechanisms in escrow with a reputable third party so as to ensure that in the event of their business failure the public will have some means of sustaining their usage of extant purchases, but I have some difficulty in going much beyond that point unless the whole argument is extended well beyond the somewhat limited scope of DRM.
Robert
Milena Popova:
Jan 13, 2011 at 06:10 PM
This is a very common problem with legal ways of downloading digital content - it's pretty much exactly what happens when you download an Mp3 from iTunes or Amazon too, which is why I still buy CDs.
It reminds me of Paul Cornell's pre-Christmas rant on ebooks (http://www.paulcornell.com/2010/12/twelve-blogs-of-christmas-ten.html) in which he says
4: People just like stealing stuff. As a recent Wired magazine article pointed out, every utopian excuse for illegally downloading music, from the presence of Digital Rights Management on tracks to the inability to move tracks between systems, has now been swept away by a market desperate to sell more music. There's literally no excuse any more. But this year illegal music downloading continued to grow, with 1.2 billion tracks being stolen in the UK alone.
Well, Paul, I have some news for you: I don't like stealing stuff, but when I shell out money for something, I'd like to actually own it.
russ@yahoo.com:
Jan 16, 2011 at 05:50 PM
Hi Robert,
When you buy a book or an e-book, you never “buy” the underlying copyright, you buy a bundle of paper with words on it, and a digital file containing words.
When you buy an e-book from Amazon you only buy a licence to use the file as per the T&Cs. Amazon is licensing certain uses of the file to you, not selling the file to you. That licence restricts you to only reading the file on authorise hardware and software.
If you would buy an e-book outright, you would have the right to read it on any hardware or software.
Robert Neuschul:
Jan 17, 2011 at 10:41 PM
Phil
"When you buy a book or an e-book, you never “buy” the underlying copyright, you buy a bundle of paper with words on it, and a digital file containing words."
I said that much already, twice in fact.
"When you buy an e-book from Amazon you only buy a licence to use the file as per the T&Cs. Amazon is licensing certain uses of the file to you, not selling the file to you. That licence restricts you to only reading the file on authorise hardware and software."
Which in practical terms is no different to the situation 25 years ago when buying music - one had the choice of [for example] vinyl LP or cassette. Your purchase of a license to one of them did NOT give you the license rights to the other medium, nor any rights to transfer content out of the purchase media into another medium. It's no different to the situation 10 years ago when "buying" a movie on VHS or DVD: the purchase of one did not give you rights to the other.
Media have always been "locked" - go back a a generation and the media producers and the hardware producers were almost always different companies but the practical effect was the same as it today. Today some media producers are also hardware producers, but the results [and the limitations] are no different.
Even an ordinary book is locked; you don't get the hardback version if you pay for the paperback, or vice versa. You don't get the right to transfer or copy the content of the book to a different medium.
I am still not convinced by any of the arguments put forward. There may well be good legal practical and/or social arguments for opening up licensing, but so far you haven't expressed any.
Phil:
Jan 21, 2011 at 04:40 PM
Hi Robert,
I believe there has been another misunderstanding as to whom you are replying to. You appear to be quoting from a comment made by "russ@yahoo.com", not me. As for the other mistake above, I indeed did not write this article to set out ORG's position, nor Jim's.
You're right that UCTA / UTCCR consumer protection needs to be applied here. But additionally, where are the strong protections of the Sale of Goods Act? Are consumers wrong to expect satisfactory quality in the ebooks they download, merely because they aren't actually buying what has heretofore been considered 'goods'? Maybe it's time for the law on ebooks to start to approximate goods; it's what consumers expect but don't get. That is the main thrust of my article; refer to the last paragraph of this post for a reflection on why it is that you perhaps miss that in responding to the post and to other commenters, albeit with legally accurate points.
That Amazon imposes what appears to be such an unfair contract is clear enough evidence to me that nobody reads the contracts they agree to when using this service. The outrage over book deletions provides further empirical evidence of this. In my article, I wanted to communicate my belief that this ignorance as to their contractual (lack of) rights - or indeed the existence of an ongoing, open-ended contract in the first place - comes about because users think they are 'buying' or 'purchasing' something, i.e. taking ownership of it, not entering into a long-term service contract. This is not just 'small print' or boilerplate - its is so vital to what they are purchasing that their (lack of) rights should be described (perhaps as an info-box, as consumer focus has been advocating) on the product page itself. Amongst other pro-consumer reforms.
Books and ebooks are sold side by side, as retail options offered for consumers, and the transactions are run in largely the same terms. So set aside legal theory, and put yourself in their shoes to understand what it perhaps is that they wish to be buying, what they believe they are getting, and what disappointment/surprises they experience when copies of 1984 are - quite legally, I presume - deleted from their Kindles.
Calling the Kindle model 'open ended rental' is arguably more useful than 'purchase' or 'retail'; at least it doesn't imply that the consumer ends up with property in their hands.
But asides from this, I think it may be high time that contracts for digital content had more consumer protection terms implied into them (such as your suggestions regarding DRM expiry/escrow, and/or guaranteed minimum term of access to the content, but perhaps also provisions that make ebooks and other digital content behave more like the physical goods which consumers are used to buying: licence transfers/assignability, lending, ability for ebook collections to be inherited (for example), and so on. I feel your rhetorical question concerning the WSJ and Manchester Guardian. You describe interoperability as a burden, and platform lock-in as the natural, easy state - which in this case I don't think is fair. The technology already exists but Amazon has gone out of their way to block it.
On a related point, it's my belief that Jim is correct that, depending on the Kindle's success, there could indeed be competition concerns arising in future.
As with several of your other analogies to hardbacks, I think making such analogies in support of your position is mistake in that the adoption of such an approach relies on ignoring/not believing in what I think to be the very different behaviour of bits to atoms; of the digital ecosystem to the physical one. I should repeat that I don't think those analogies can be faulted for their legal analysis. yet as with the debate over software patents, this perhaps highlights why many feel that applying laws developed in a physical world - where scarcity is the rule - is an approach which is deeply unproductive for digital societies.