software
Brought to you by

You Don't Own The Books On Your Kindle

On a dark and stormy night, an employee of your local bookstore strolls into your home, starts tossing books you’d purchased over the last few years into a box, and — despite your protest — takes them all away without saying a word.

Thankfully that’s not what happened to Linn Jordet Nygaard. Well, not exactly. The Norwegian womanfound herself on the wrong side of bureaucracy, but the outcome was much the same (without as much mud on the carpet): Amazon turned off her Kindle account, blocking her from her own books. And they wouldn’t tell her why.

“Two weeks ago my Kindle started showing stripes on the screen and I contacted Amazon support,” Nygaard told NBC News. “Someone immediately found the Kindle in the system and told me they would replace it free of charge. They could only ship the replacement to UK because it was originally purchased there, and I told them I would find an address the next day. (I live in Norway, but have a friend who lives in London.)”

Nygaard was pleased with Amazon’s prompt service, she told us, even though this was her second Kindle to fall victim to “stripes” on the ePaper screen.

But when Nygaard attempted to log into her Amazon account the next day, her account was suspended — and with it access to her library of 43 books.

Those friendly phone-based customer support folks couldn’t access Nygaard’s account either, and she was passed on to “account specialists” who only communicated via email. That’s when things took a Kafkaesque turn (as documented by her friend, Martin Bekkelund, on his blog). A man named Michael Murphy with Amazon UK’s “Executive Customer Relations” told Nygaard her account had been determined to be “directly related to another which has been previously closed for abuse of our policies”. Which policies? He wouldn’t say. What other account? Murphy wouldn’t share that either.

Instead, Murphy would only pass on this shrilly authoritarian boilerplate:

Per our Conditions of Use which state in part: Amazon.co.uk and its affiliates reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders at their sole discretion.

Please know that any attempt to open a new account will meet with the same action.

Now, just to spoil the story, I’ll skip to the happy ending for Nygaard: After taking her story public, Amazon saw the error of their ways and restored her Kindle library. She’s still waiting on her replacement Kindle, but in the meantime, she has access to her library through the Kindle iOS app on her iPad.

But Amazon doesn’t get off the hook so easily. When we reached out to the company on Monday, its PR representative would only send us a canned response it had dropped into its customer forum: “We would like to clarify our policy on this topic. Account status should not affect any customer’s ability to access their library.” (Amazon loves copying and pasting, it seems.) Our followup question hasn’t been answered yet: “Why wasn’t [Nygaard] told why her account was cancelled?”

And it probably won’t be. Nygaard’s little dust-up with Amazon isn’t in and of itself a big deal. But it serves as a bitter reminder that we don’t ever truly own the digital goods and software we buy online. Instead, we rent them or hold them in a sort of long-term lease, the terms of which are brokered and policed exclusively by the leaseholder.

As Boing Boing’s Cory Doctorow put it in a blog post yesterday:

This fine print will always have a clause that says you are a meretenant farmer of your books, and not their owner, and your right tocarry around your “purchases” (which are really conditional licenses,despite misleading buttons labelled with words like “Buy this with oneclick” – I suppose “Conditionally licence this with one click” isdeemed too cumbersome for a button) can be revoked without notice orexplanation (or, notably, refund) at any time.

The core issue might actually be a simple matter of semantics: when we click a digital button that is labelled “Buy”, we expect that we’re actually buying something. But we’re not buying anything, we’re licensing it. Just last year, the Supreme Court ruled that the first-sale doctrine does not apply to software or ebooks. Or apps. Nor pretty much everything you “Buy” online that doesn’t get shipped to your home in a cardboard box.

Those long End User Licence Agreements you have to read before you use a new piece of software? Those are are legally binding, because you’ve clicked a button labelled “Agree”. But for some reason, online retailers can label their buttons “Buy” when they actually mean “Rent”, and there’s nothing we can do about it save for filing a lawsuit.

You could call Nygaard’s experience a tempest in a teapot, a matter of a few hundred dollars worth of goods that, after a little public outcry, were fixed without issue. But you would still be pretty angry if and when it happens to you. (It is worth noting that despite Amazon’s stated policy that customers can still access their previously purchased Kindle library even if their account is suspended, Nygaard couldn’t download her books to a new device because her account was suspended.)

As she explained to us, “Before I started emailing Mr Murphy, I could not log in to my account from web or iPhone. And my Kindle screen was broken so the fact that the books were still there didn’t help me much.”

I was curious if there was any merit to my idea of attempting to hold retailers to these “Truth in Buttons” terms, so I asked Intellectual Property attorney Seth Greenstein, who wrote about about case law for reselling ebooks a couple years back, if the notion held water. AsGreensteinexplained in an email to NBC News, it’s not all completely settled:

All sales through Apple and other online retailers are subject to terms of use that set forth the conditions of sale. You may buy a track from the iTunes Store that can be used on a certain number of devices, or a copy of an e-book that comes with restrictions as to the ability to lend or the devices on which it is viewable – -a “sale” with “conditions.” The “conditions” apply only to the person who entered into the agreement; they do not necessarily bind a third party.

In the patent context, the Supreme Court this term has granted review of a case to determine whether first sale privileges are defeated by a purchase “with conditions.” Typically this arises where the seller marks products “single use only”. The question is whether that is enforceable only under contract law, in which case it applies only to the purchaser; or, as a matter of patent law, against anybody. Why does this make a difference? Take a case I litigated in which Lexmark placed a “single use” type of restriction on its cartridge boxes attempting to prevent its aftermarket competitors from refurbishing and refilling cartridges and selling them for far less than the price of a new cartridge. If the restriction is upheld under patent law, Lexmark could claim these aftermarket companies infringe its patents. If not, the aftermarket competitors may be lawful. The courts found that the first sale doctrine (called “patent exhaustion”) trumped the single-use restriction. Now the Supreme Court will have the last word.

If the world’s governments determine that customers don’t have the same right of ownership over digital goods as we do over our material goods, the least they could do is force companies Amazon to be truthful about what is sold, and what is actually just rented. And it will probably take a lawsuit or legislative action to force Amazon to speak truthfully about the transactions, if only because it changes the perceived value in a customer’s mind: $15 to rent a file that contains a book that can be taken away from you at any time, without explanation or recourse, starts to sound a little expensive.

This post is republished with permission from NBC News. Joel Johnson is a tech and science reporter who lives in Brooklyn. He is undecided about artisanal mayonnaise.