As many are reporting, Amazon.com “recalled” an e-book remotely in response to a request by a publisher. This is all kinds of scary and most folks are centered on the purely tangible nature of the problem. I’m also concerned about the precent it sets, but I’m more concerned about the sapping of intellectual property rights that seems to be yet unexplored by these articles.
When you buy a book, you’re actually completing two transactions. You’re purchasing the paper – the tangible product. But you’re also buying a copy of the story itself – the intellectual property. Each of these has distinct legal implications and over the years, laws have been developed to help protect not only the customer/consumer, but also the author and publisher. The physical aspect protecting the consumer is that you have the ability to change your mind about your purchase (ie: you can return the book assuming you don’t damage it and that the transaction wasn’t noted as “all sales final” (though this isn’t an absolute bar to return)). Retailers are likewise allowed to return what is returned to them – they have even more flexible return policies with their distributors. And, as we’ve seen in the prior articles, folks are in an uproar about the idea that a retailer would come to your house to automatically take-back things you’ve purchased simply because their distributors wanted them to do so.
The other transaction – the one for the intellectual property – is much more interesting (IMHO).
Copyright is the protection most books are afforded. When you buy a book, you have the right to read the story, burn/destroy the book, talk about the story with anyone, and heck, you can even resell the book (this is all part of what is known as the “first sale doctrine”. What you can’t do is make copies of the book. If you sell it to someone else, you can’t keep a copy for yourself, too (this is the issue with software, music, movies, etc being “shared” online). But short of sale, the ownership in the copy is yours. Therefore, it’s my argument that Amazon.com’s behavior amounts to theft – both of the tangible item AND the intellectual property.
The usual problem with pursuing this claim is that a service provider is smart enough to make device owners agree to some form of Terms of Service. I would’ve thought that the Kindle ToS would have even been so bold as to allow Amazon an unrestricted right to do what they did. But it doesn’t (Amazon Kindle ToS as of 2/9/2009):
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. [Emphasis added.]
I have other problems with this document, of course (such as the restrictions on resale). But on its surface, Amazon grants a perpetual license to the purchased content. So through their behavior, following their own Terms of Service, they’re in breach. But we won’t hear about any suits as the ToS restricts claims to confidential arbitration and limits damages to the price of the device.
For its part, Amazon says that “We are changing our systems so that in the future we will not remove books from customers’ devices in these circumstances.”
[Update: Amazon’s Herdener (the source of the above quote) actually said more:
These books were added to our catalog using our self-service platform by a third-party who did not have the rights to the books. When we were notified of this by the rights holder, we removed the illegal copies from our systems and from customers’ devices, and refunded customers. We are changing our systems so that in the future we will not remove books from customers’ devices in these circumstances.
This doesn’t really change anything. Even if an unauthorized party sells you something they don’t own, so long as you don’t know that the item wasn’t theirs to sell, you retain ownership as a “bonafide purchaser.” I’m glad to see that Amazon won’t remove books in the future, seeing that they weren’t supposed to do it in the first place.]