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.


Comments

    "As Boing Boing’s Cory Doctorow put it in..."
    Sorry, but whaa...?

      They're talking about this website:
      http://boingboing.net/

    If amazon blocked my account for illligitimate reasons and i couldnt access any of my books i would illegally download all books from then on and just use it that way.

    I use my kindle legitimately and purchase my ebooks but if i were blocked, thats what i'd do.

    more loss to them.

    As the article states, the best legal action (as an Australian anyway...) would not be to challenge the license agreement. It would be better to challenge the method in which that agreement was presented to you. That is, you were led to believe throughout the purchasing process that you were "buying" and not "renting" the product.

    On Amazon you add "items" to your "cart" and then you hit "buy now"... if that doesn't imply a standard purchase then I'm not sure what does.

    So if your license agreement were ever terminated I'd just go for all my money back with the argument that you were misled by Amazon into agreeing to a purchase contract.

    All this is why any sensible person uses Calibre + plugins to remove the DRM on the Amazon files the moment they arrive and add them to their private content server. I don't know (or care) of the legality of this, but I know it's ethically the right and best thing to do...

      Very true, but if I am doing this I am 1. breaking the law, and 2. putting myself through extra hassle. Given this, what is the advantage of buying from Amazon and converting over downloading an infringing copy? Certainly there is no advantage in terms of legality, and no advantage in terms of convenience. I suppose you could argue that I should pay anyway out of the goodness of my heart, but if Amazon is going to treat me as badly they treated Ms. Nygaard then I frankly won't feel particularly motivated to do the right thing by them either. It's almost like Amazon want me to pirate.

      My other alternative is of course to buy from a rival shop, or even direct from authors, in .mobi format. If I do this I have BETTER convenience (compared to the hassle of DRM stripping), I am acting within the law, and I actually get to keep my books. It's almost like Amazon want me to buy from Baen.

      By integrating their shop into their very popular devices, Amazon had potentially created a huge competitive advantage for themselves in terms of convenience. I seems deeply strange to me that they apparently want to squander their advantage in this way. I own a Kindle. I don't feel comfortable buying books from Amazon. Amazon should spend some time thinking long and hard about how they have created this situation.

    I honestly am not sure what the cost involved in these purchases cover these days. Years ago I'd pay the same price (or nearly anyways) to buy a real copy of a book I wanted to read, take it home & do whatever I liked with it. The cost of the product was obviously not only to give me those things but also the promotional, manufacturing & distributing costs involved. Now that you're 'leasing' a digital copy that only works on that one device wtf is the cost for?
    Not to mention you can usually borrow actual books from a library for free?

    Stuff it. The only reason I would buy a kindle is if I intended to re-purpose the device for personal use. I'm in desperate need of something i can turn into a tricorder and program as i need.

    Good article, Joel Johnson from NBC News, but it appears your space bar & spell checker are on the fritz :)
    womanfound, tocarry, "licenses,despite", oneclick, isdeemed, orexplanation, AsGreensteinexplained

    With a paper book you have something to read, share, distribute till when the paper decomposes or the book is destroyed. With an ebook if some other format becomes the defacto standard and new devices no longer support the "old" format what happens to your library?

    As a case in point, years ago I attended a conference hosted by Apple on quicktime video. At the conference we all received a CD rom with a bunch of what was then first class digital video.

    Today nothing will play the video. Not because the media is corrupt but because the videos use quicktime 1 or 2 (both of which are dead). Sure, years have passed but what if the videos were of the birth of my children am I expected to either lose the videos or to convert them to a newer formats?

      Keep an old player around. Like you do for VHS.

    For what its worth, I read the first article about this and being an android user, I wondered if I was able to retrieve my ebooks. I have not checked Google's Terms and Conditions, but for what it's worth, I was able to log onto my account through Google Books website and able to download the ebooks I have purchased in .epub format.

      How? I looked and I can't see where that option is.

    This is the reason why I only use pirated audiobooks. When you buy something you should own it outright, not have the company you bought it from decide where and when you can use it.

    Last edited 25/10/12 7:55 pm

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