Cory Doctorow: Amazon can’t keep its EULA story straight

Cory Doctorow has a brief rant on BoingBoing about Amazon’s inconsistent use of terminology between its Kindle e-book license agreement and its advertisements.

The license agreement states that customers do not actually “own” Kindle books they buy; they’re simply “licensing” them for a limited set of uses. However, Doctorow points out:

It’s such a silly notion that even Amazon can’t keep its story straight. Take this press-release in which Amazon trumpets that its "customers purchased more Kindle books than physical books." Purchased, not "licensed."

Or consider this ad (courtesy of Elix): "Kindle publications are sold by Amazon Digital Services, Inc." Again, sold, not "licensed."

(Yes, you can purchase a license. But that’s not what the copy says. It doesn’t say, "Amazon customers purchased limited licenses to more Kindle books…")

He also brings up his inability to waive those license terms to place his Makers audiobook in Amazon’s Audible store.

Amazon isn’t doing this because the publishers insist on it: even when my publisher, Random House, the largest publisher in the world, told them that they didn’t want the crazy EULA, Amazon insisted.

It is worth remembering that the ownership terms of e-books are still a subject of considerable consumer/publisher disagreement. Readers want to “own” their books, to be able to move them between devices at will and lend them to friends. Publishers (and stores) want every copy paid for and read only in their format.

This does not appear likely to change very soon.

12 Comments on Cory Doctorow: Amazon can’t keep its EULA story straight

  1. And it’s not going to change until authors and publishers stop rolling over and accepting Amazon’s “unacceptable” terms anyway, in order to stay in their “unacceptable” store to make their “unacceptably” earned money.

    Cory and the publishers need to vote with their shoe leather: There’s nothing physically stopping them from setting up their own online sales channels and bypassing Amazon… and even selling e-books that can be read on the Kindle. Until they do that, or at least demonstrate that they’re willing to do that if Amazon doesn’t change, their complaints are just sour grapes.

  2. Well, Cory gives his e-books away free, and didn’t place his audiobook with Audible in protest over the terms, so he pretty much is doing that.

    But it seems like a lot of writers and publishers just don’t care that much.

  3. Right… I almost forgot, Cory does use his shoes. His publisher needs to take the hint, as do the rest of them.

  4. Under UK law, if it’s advertised as a sale, the button you press is marked “buy” and not “acquire a licence” and you’re selling to the public?

    It’s a sale. No question.

  5. Another one of Doctorow’s tempest in a teapot rants.

    Amazon is using language the buyer understands, not the language of the law. You see the same language used at Fictionwise and all the other ebook sale sites. You only see the term “license” buried in the legal information in the TOS, etc.

    Even with a paper book, the purchaser doesn’t “buy” the content, they are only buying the paper, the ink, and the binding. The true contents-the words-can’t be bought. In fact, in most cases, the publisher leases the contents with a contract so it can’t sell what it doesn’t own.

    I’ve never seen anyone rant because the term “buy” is used with a paper book.

    As to ownership of the content of any book, be it paper-printed or digital, “fair use” covers what you can and can’t do with bits of the content, “the first sale doctrine” determines what you can and can’t do with the paper the book is printed on, and “the license agreement” tells you what you can and can’t do with a digital book.

    And for those who don’t know, you can’t legally resell an ebook because the First Sale Doctrine doesn’t apply to digital books.

    Go here for an explanation of all this

    http://mbyerly.blogspot.com/search/label/copyright

  6. “Readers want to “own” their books, to be able to move them between devices at will and lend them to friends. Publishers (and stores) want every copy paid for and read only in their format.”

    Except that in my case, the pulisher DIDN’T want to lock formats. That was Amazon.

    @Marilynn You are categorically wrong about paper books. You most assuredly *do* buy them. Your purchase triggers something called the “doctrine of first sale.” It confers upon you every single right conferred by law on the buyer in a purchase transaction.

    Amazon’s use of a license is an attempt to circumvent the consumer rights that copyright and common law afford to purchasers of books, by declaring that because they say so, it’s not a sale, but a license. And if you read the license, you’ll see that they’re taking away your fair use and first sale rights.

    Why you think first sale doesn’t apply to digital books is beyond me. Certainly the Federal District Court in Autodesk would strenuously disagree with you.

  7. Cory: Thanks for posting! Yes, I probably should have been more clear there. Random House seems to be an exception in this case; another such is Baen.

    (Though it’s worth pointing out that when I go to Fictionwise and do an advanced search for e-books published by Random House in secure formats, I find 11,469 items—and none at all in DRM-free “multiformats”. So maybe it’s you who are the exception here—not your publisher. :))

  8. Does Amazon have the legal right to sell “licenses”? Are publishers granting them sub-rights of the licenses that they’ve acquired? This feels like meaningless words until someone sues… Cory?

  9. So I “buy” some computer software from amazon (or any other vendor for that matter) install it and then register it with the manufacturer. According to Cory’s logic I then have the right due to the doctrine of first sale to sell it to someone else after I am done with it.

    Is this how it works in real life with every software title I purchase? Does every software manufacturer recognize my right of first sale and allow subsequent “owners” to register the software on their pc?

    It doesn’t” Quelle horreur!!

    Is amazon (or whatever vendor I purchased the software from) also running a scam similar to the way they sell ebooks?

    Of course not.

    Is amazon causing consumer confusion by their “devious” advertising practices?

    Well…I don’t think it takes much to cause customer confusion and while I don’t blame amazon for this I do think there will likely be some upset Kindle owners who come to find that they can’t sell their ebooks.

    And of course the inevitable class action law suit will follow (this is the US after all). I can hardly wait for my coupon from the settlement of such a suit!!!

  10. Cory said,

    @Marilynn You are categorically wrong about paper books. You most assuredly *do* buy them. Your purchase triggers something called the “doctrine of first sale.” It confers upon you every single right conferred by law on the buyer in a purchase transaction.

    Amazon’s use of a license is an attempt to circumvent the consumer rights that copyright and common law afford to purchasers of books, by declaring that because they say so, it’s not a sale, but a license. And if you read the license, you’ll see that they’re taking away your fair use and first sale rights.

    Why you think first sale doesn’t apply to digital books is beyond me. Certainly the Federal District Court in Autodesk would strenuously disagree with you.

    Actually, you are wrong, Cory. You don’t buy ownership of the content of a book when you buy the paper. (See US Government definition of “First Sale Doctrine below) Otherwise, it would be perfectly legal to print new copies and sell them as well as make a movie based on the book without paying the author.

    If those big movie companies who made movies of your books didn’t pay you, get yourself a new agent.

    As to ebooks and the First Sale Doctrine, you are wrong as well.

    Since you didn’t bother to read my article on the subject, I’ll print it here. I also suggest you read the resources I mention if you don’t believe my article. Other articles on copyright for readers and writers are at

    http://mbyerly.blogspot.com/search/label/copyright

    EBOOKS AND THE FIRST SALE DOCTRINE

    This is a very general overview for readers and authors, not an exhaustive legal discussion on the subject. If you want an exhaustive overview complete with all the legalese and laws, I suggest the articles I have links to at the bottom.

    The First Sale Doctrine Defined:

    “First Sale Doctrine refers to the right of a buyer of a material object in which a copyrighted work is embodied to resell or transfer the object itself. Ownership of copyright is distinct from ownership of the material object. Section 109 of the Copyright Act permits the owner of a particular copy or phonorecord lawfully made under the Copyright Law to sell or otherwise dispose of possession of that copy or phonorecord without the authority of the copyright owner.

    Commonly referred to as the “first sale doctrine,” this provision permits such activities as the sale of used books. The first sale doctrine is subject to limitations that permit a copyright owner to prevent the unauthorized commercial rental of computer programs and sound recordings.” US Government Publication 04-8copyright. http://www.cendi.gov/publications/04-8copyright.html

    One of the ongoing discussions about copyrighted ebooks is whether the “first sale doctrine” can be applied to a digital book. Can a person sell a used copyrighted ebook?

    Right now, the US Government as well as most other governments say no. (see iTunes White Paper link below)

    Look at the US Government definition above to see one of the reasons why. First sale doctrine only applies to a “material object” like a paper book. A copyrighted digital book isn’t an object, it’s content, and content can’t be copied and, therefore, can’t be resold.

    Also, copyrighted digital content like music, computer software, and ebooks aren’t technically sold, they are leased according to the licensing terms a person agrees to when they put their money down for the song, etc.

    At ebook distributor sites like Fictionwise.com, the terminology “sell” and “buy” are used, but in their FAQs, they say you are only leasing an ebook, not buying the content, so you can’t resell it, etc.

    The difference between “lease” and “buy” is also used as a justification of why an ebook can’t be resold.

    All those who say that “first sale doctrine” applies to copyrighted ebooks are wrong from a legal perspective.

    Only lawsuits, the courts, or Congress can change this, but most of the money is on the side of the copyright leasers — the publishers, music and movie companies, etc., so I doubt “first sale doctrine” will ever apply to copyrighted ebooks.

    RECOMMENDED RESOURCES

    Amazon Kindle and Sony Reader Locked Up: Why Your Books Are No Longer Yours, Columbia Science and Technology Law Review.

    http://www.stlr.org/2008/03/amazon-kindle-and-sony-reader-locked-up-why-your-books-are-no-longer-yours/

    Explores the various issues of sale versus license, first sale doctrine, etc.

    iTunes White Paper

    http://cyber.law.harvard.edu/media/uploads/81/iTunesWhitePaper0604.pdf

    The last sections explain various governments’ stances on first sale doctrine issues.

    US Government Publication 04-8copyright.

    http://www.cendi.gov/publications/04-8copyright.html

    Copyright, as well as “first sale” and “fair use,” defined and explained.

  11. I think we’re in a semantics war (for those who remember history, those are often the worst kind). When you walk into a bookstore and pay for a hunk of paper with words on them, you’re not actually ‘buying’ the ‘book.’ What you’re doing is buying the media with the right to do certain things with the content. If you truly ‘owned’ the book, you could reproduce it, read it aloud and sell the audio of yourself reading it, create derivative works, etc. What you can do is re-sell the media (with attached words) should you choose to do so. Yes, you own the paper. That’s about it. With eBooks (except a few ancient floppy-disk versions) there is no media to own, so the rights to sell paper don’t apply.

    In my opinion, there’s no overriding advantage to the right to resell paper. Sure it creates a nice business for some corporate used bookstores (and Amazon) but whenever I’ve sold used books, I’ve been lucky to get a few pennies on the dollar (for only the most recent best-sellers). I’ve built my business model on offering highly affordable prices for quality non-DRMed fiction which readers will want to keep but certainly can’t resell. Do you own them? Well, in a way. Is this a meaningful question? Not especially in my opinion.

    Rob Preece
    Publisher

  12. Rob said, “In my opinion, there’s no overriding advantage to the right to resell paper. Sure it creates a nice business for some corporate used bookstores (and Amazon) but whenever I’ve sold used books, I’ve been lucky to get a few pennies on the dollar (for only the most recent best-sellers). I’ve built my business model on offering highly affordable prices for quality non-DRMed fiction which readers will want to keep but certainly can’t resell. Do you own them? Well, in a way. Is this a meaningful question? Not especially in my opinion.”

    It’s only important if the terminology is used to justify theft of copyright.

    It’s a pity that Cory Doctorow has left this discussion. I’d really liked to have heard how he thinks the US Government and Harvard Law professors misunderstand copyright, and he doesn’t.

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