This question is not an easy one and will be explored in four parts. In this post I will deal with one aspect of ownership the right to keep your copy of an ebook. Kindle’s Terms of Service states that you own a perment copy of the ebooks you buy:
Use of Digital Content. Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use. Digital Content will be deemed licensed to you by Amazon under this Agreement unless otherwise expressly provided by Amazon.
This sounds great, the permanent copy language makes me feel warm and fuzzy inside until I get to the next section where I find out I can not transfer, rent, lease or distribute (or maybe even read aloud but that is for another post) that copy:
Restrictions. 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 any proprietary notices or labels on the Digital Content. In addition, you may not, and you will not encourage, assist or authorize any other person to, bypass, modify, defeat or circumvent security features that protect the Digital Content.
Along comes 1984, which was sold on Amazons site to users then deleted off end users machines when it was found out the publisher did not have US distribution right. The publisher usually published public domain books and 1984 is in the public domain in Australia and other countries. Some have claimed that it was with in Amazon’s rights to delete 1984, although most sources do not appear to have read the Kindle ToS. The ToS does not on its face appear to give Amazon the power to do what it did, and when faced with a law suit kindle settled very quickly. PC World has a decent piece on this:
In the settlement, Amazon promises never to repeat its actions, under a few conditions. The retailer will still wipe an e-book if a court or regulatory body orders it, if doing so is necessary to protect consumers from malicious code, if the consumer agrees for any reason to have the e-book removed, or if the consumer fails to pay (for instance, if the credit card issuer doesn’t remit payment).
So, the answer is still “no,” you don’t own the digital books you download. Though I can understand the reasoning behind some of the exceptions Amazon lays out, Amazon still maintains control over your e-books. It is not the same as having a book all to yourself once you leave the bookstore.
The “judicial or regulatory order” clause is the one that concerns me most. Theoretically, if the dispute over Orwell’s e-books came to blows in court, and Amazon was ordered to wipe out all copies that it distributed, we’d be in the same situation. The only difference is that Amazon can point its finger at the court system or the government, instead of taking the blame for enabling remote deletion in the first place.
Although even PC World understates the difference in requiring court action. For a court to order all copies wiped from end users’ Kindles it would have to be an extraordinary circumstance. Just recently the Supreme Court emphasized that this type of injunction should not be given out automatically for IP cases. Ebay v. Mercechange outlined the test for an injunction like this and it is heavily in favor of not granting this type of injunction unless there is no other reasonable option:
According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
The court would have to balance the harm of removing those books and consider other options such as having Amazon pay the rights holder each lost sale. A few lost sales does not appear to be irreparable injury when lost sales can be compensated from with monetary damages. By turning to the court here Amazon avoids a knee jerk reaction like what happened and shifts responsibility to an entity legally required to consider the public interest not just the bottom line.
Amazons agreement under the settlement places the question of do you one Ebooks in the hands of the court when a dispute arises, but given the high standard in Ebay v. Merc books are safer there. I do not like the idea of courts or the government being able to delete anything you want to read, but it scares me a little less to have the courts decide then to leave the choice to trigger happy corporations scarred of statutory copyright damages. Although the ideal outcome would be to allow end users the ultimate say in the mater. I would suggest a confirmation box that end users have to consent to the deletion in the case of a court order with a guarantee that Amazon will not track how users respond.
Beyond the 1984 kurfluffle there are two other rights you are missing from the Kindle ToS that are essential for ownership. The right of resale, sometimes called the first sale doctrine and the freedom to tinker with your ebooks. Both of these topics will be covered in separate posts in the coming weeks.