Why the drmfree tag campaign matters—and why Amazon just MIGHT be setting itself up for the FTC to sue it

image How many times do we have to say it? Even though some publishers may think of DRM as a tool to protect “intellectual property,” Amazon currently sees it as a way to lock you in as a customer and prevent you from truly owning your books.

Kirk Biglione at Medialoper has astutely zeroed in on a clause in the Kindle Terms of Service that might restrict you from freely using even files tagged drmfree on nonKindles without Amazon’s authorization. But even if that’s the case, which it might not be, here’s why tagging is still a good idea. Remember how Gemstar’s e-book efforts went belly-up? If Amazon goes out of business or stops doing e-books, don’t you want to be able to retain access to your books if possible? Oh, and in that case and others, there’s also the pesky little issue of the enforceability of a clause saying that the books may be displayed “solely on the Device.”

Printer cartridge parallel?

It’s as if the law says Hewlett Packard can legally make you use only its cartridges in its printers. I’m not a lawyer, but to this civilian, the Amazon clause might be begging for a court test. Any comment from actual lawyers? What about an actual case where the Supreme Court prevented Lexmark from using the DMCA, at least, from to stop competitors from making better, cheaper printer cartridges for Lexmark machines? I’m not saying the case definitely applies. But prior case law is worthy of investigation by appropriate lawyers.

Tag away!

So for now, for the above reasons, please tag away and encourage publishers to use the drmfree tag on Kindle books known to be free of the taint! Work toward the time when Amazon will drop DRM or at least stop using it to deprive consumers of genuine ownership of their books.

Meanwhile let’s not forget Kirk’s main point—that Amazon is guilty of less than full disclosure, and thus might be setting itself itself for an FTC suit. Again, this is for the lawyers to decide, remembering what an FTC official said: “If your advertising giveth and your EULA taketh away, don’t be surprised if the FTC comes calling.” Of course, if Amazon can make the issue moot, by leveling with consumers, book by book, or by persuading publishers to drop DRM, that’ll be great. I do appreciate an Amazon staffer’s statement to Kirk Biglione saying that “I’ll pass your [disclosure] request along to the Kindle team.” Great idea!  TeleRead’s fight isn’t against Amazon per se, but rather against its DRM and its monopolistic ways.

1 Comment on Why the drmfree tag campaign matters—and why Amazon just MIGHT be setting itself up for the FTC to sue it

  1. I find it very scary that Amazon can basically disable your Kindle and all your ebook purchases at any time, for any reason.

    Amazon’s TOS pretty much gives them the ultimate authority to do as they please. Unfortunately, you are probably right – it will take a trip to court to get them to change their ways. Or, consumers will just get so fed up that the Kindle will become too much of a liability.

    I also agree that Amazon’s “full disclosure” regarding the Kindle is severely lacking. If they want to impose draconian DRM on their own customers, fine, but at least say it up front.

    Believe it or not, I really do like Amazon. I just don’t like this power-grab they’re trying to get away with with the Kindle.

    Great post! Keep up the good work!

    P.S. Here’s a recent post I wrote about this exact topic:


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