digital first sale doctrineApparently I caused consternation and confusion with a comment in my article on the Department of Commerce soliciting feedback on digital first sale doctrine.

In the article, I said I was glad I didn’t have to ask permission to give a DVD as a gift. A discussion ensued in the comments about giving away Kindles loaded with ebooks. I said that would be illegal because we are licensing digital content instead of buying it, a topic we’ve discussed here before.

Several people asked me to back up my claim about giving away Kindles. I think a couple of people misunderstood me. Yes, you can give away a Kindle. It’s a physical object. You can buy it as a gift for someone else. You can use it for a while and then sell or give it away. (I recently sold my Kindle Touch, in fact.)

What you can’t do (legally) is give away that Kindle with all your books still on it. Here’s the relevant parts of the Amazon Kindle licensing agreement.

Use of Kindle Content. Upon your download of Kindle Content and payment of any applicable fees (including applicable taxes), the Content Provider grants you a non-exclusive right to view, use, and display such Kindle Content an unlimited number of times, solely on the Kindle or a Reading Application or as otherwise permitted as part of the Service, solely on the number of Kindles or Supported Devices specified in the Kindle Store, and solely for your personal, non-commercial use. Kindle Content is licensed, not sold, to you by the Content Provider. The Content Provider may include additional terms for use within its Kindle Content. Those terms will also apply, but this Agreement will govern in the event of a conflict. Some Kindle Content, such as Periodicals, may not be available to you through Reading Applications.

Limitations. Unless specifically indicated otherwise, you may not sell, rent, lease, distribute, broadcast, sublicense, or otherwise assign any rights to the Kindle Content or any portion of it to any third party, and you may not remove or modify any proprietary notices or labels on the Kindle Content. In addition, you may not bypass, modify, defeat, or circumvent security features that protect the Kindle Content.

Bolding in the text is mine. This is an ongoing debate about eBooks. While you can resell or give away a paper book, you’re not legally allowed to do the same with an eBook. The argument being that because it’s digital, you aren’t giving away your only copy. You could, for example, (although this also violates the licensing agreement), download the book to your computer, free it of DRM and keep a copy for yourself and then give away your Kindle to a friend, with a copy of the book still on the device. That’s illegal on two counts, freeing it of DRM to back it up and then giving it away.

From a practical consideration, you wouldn’t want to sell a Kindle loaded with Amazon books anyway because that Kindle could be used to purchase books on your account, which, presumably you wouldn’t want a stranger to do. It always better to wipe and deregister a Kindle (or other ereading device) before selling it.

A grayer issue is lending a Kindle to a friend to allow the friend to read a book and then give the Kindle back. It doesn’t violate the “display such Kindle Content an unlimited number of times” clause, but it probably does violate the “solely for your personal, non-commercial use” clause.

As I said in the first article, I don’t agree with the license vs. own arrangement. As an author, I really don’t care if you give away a copy of my books. Have at it! The more people who read my books the better. However, many authors and most publishers don’t agree with me, which is why we have the whole “license vs. own” debate. Personally, I don’t like thinking of my eBooks as some sort of second-class citizen, but until enough of the rest of the world agrees with me, we have Terms of Use like the one above.

I hope I cleared up the confusion from the previous article, but if not, there’s always the comments.


  1. Juli, regarding, “you may not sell, rent, lease, distribute, broadcast, sublicense, or otherwise assign any rights to the Kindle Content or any portion of it to any third party,” the object of the sentence is “RIGHTS” (not shouting at you!).

    An interesting part of the terms that you did not highlight is the “non-exclusive right to view, use, and display”… “NON-EXCLUSIVE” (not shouting at you) being the part where I think Amazon cracks the door open to you being allowed to show what you are reading to someone else. What would mothers do, if they weren’t allowed to read “Where The Wild Things Are” on their Kindle, to their toddler?

    I agree with you about the “personal use” part, which may or may not be boilerplate, and the “commercial use” part ought to rule out subscription libraries renting out loaded Kindles.

    Authors who worry about piracy and the erosion of copyright might not take issue with you over, ” I really don’t care if you give away a copy of my books” if only it were a question of “A” (singular) “COPY” (singular), and of one book, to one friend.

    The trouble is that it is impossible to limit duplication to just one copy.

    • @Rowena, again, I think a lot of it depends on common sense. I doubt Amazon cares if we show our books to other people (on the train, to our kids) and the like.

      The “rights” part is where books become, under this model, more like software programs, which doesn’t always sit well with me. It’s a book, darn it! Not a program. Even if I do read it on a computing device.

      As to piracy and sharing of books, at least one of my books is on a pirate site. Honestly, I don’t care. Actually, I was kind of chuffed about it when I found it. I figure to be pirated you have to be noticed, so I must be doing something right. 🙂 The people who download from there weren’t going to buy it anyway, and if they give it to someone else, that person might buy it. Or not. It’s just not something I lose sleep over.

  2. Juli,
    Where are you so flatteringly pirated? “Filestube”? Not a pirate site, but a sponsored phishing site. Any time you search for your name, you will find yourself there. If I search for Rowenna Bumfondler Chernobyl, I will find myself there.

    I tried all the usual searches and could not find you on a real pirate site. Please help me out. You surely cannot mind publicizing where people can find illegal copies of your works.

    Is this you on Amazon?
    “I used to be a wallflower. I didn’t know about networking, and I didn’t want to know. Then I was laid off from my job, and I was told, “You’ll have to network to find your next job.”
    I was devastated, but I gave it a try. I finally networked my way to an interview for a sales job, and that’s when I had a real “Ah ha!” moment. During the interview, I didn’t have to talk. The owner of the company was obviously trying to sell me on the job. I didn’t have to sell myself. The person who brought me in for the interview had already done it.
    That’s when I realized the power of networking.
    I did well at that sales job, but decided I really wanted to help other people learn to network, so I started my own business as a networking coach. I’ve helped lots of clients build business relationships through networking and social media. I’ve gathered what I’ve learned on my own and through working with clients into The Enthusiastic Networker.
    But I also have a love of fiction, and I decided to self-publish a series of urban fantasies set in Washington D.C., where I live. The first one is out, but there will be more to come.

  3. Keep in mind that the law takes quite seriously contracts made where lawyers are involved, particularly between businesses. In those situations, it does little good to whine, “but I didn’t see that clause.” Your lawyer should have.

    For the public, though, there’s less expectation that the general public will read, much less understand those terms. Companies put them in because they’re a good way to discourage lawsuits not because they can win on those clauses in court.

    What courts will take seriously is the general impression a retailer seller creates. Finding out that what’s advertised as a “lifetime guarantee” in bold type really means three years in the fine print doesn’t impress a court. If you didn’t mean lifetime, don’t say lifetime.

    For ebooks, you can go to one of my titles and see what Amazon is saying:

    Notice the “Buy now with 1-Click” button and the “Give as a Gift.” Buy and Give not Lease. Notice too that it’s sold in parallel with a printed version, which really is sold and that the prices are listed on top of one another, suggesting the “Digital List Price” and the “Print List Price” is referring to the same kind of sale. It doesn’t say “Digital Lease Price” or “Kindle Lease Price.”

    Now check out another of my recent books at the iBookstore:

    Apple doesn’t sell ebooks through web pages, so follow the “View in iBooks” button if you have that app installed. There you will find that the button says “Buy Book.” Again, no mention of a lease. And calling it a book rather than an ebook suggests that it’s sold like books have always been sold.

    Were I a lawyer at Amazon or Apple I’d be very worried and lobbying either for the leasing to be made most clear or (much better) that a sale really be made a sale.

    I suspect the ticking time bomb for this isn’t ebooks but all the digital music people assume they have bought, partly because what they’ve bought digital has become mixed with what they bought on CDs. At some point they may want to sell that music. Even more likely, as the baby boom ages, they’ll want to will their collection to family members.

    Again, if I were a lawyer for Amazon or Apple, I’d not put up a fight that’d only make the company look bad. I’d allow transfers under what I’d call fair and reasonable conditions. The best way to head of lawsuits is to remove their cause while building in some protections for yourself. And by conditions I’d mean things like:

    1. The transfer can’t take place until six months after purchase or acquisition. That’d hinder pass-it-along music/ebook exchange clubs. I’d even consider setting up a used ebook market that’s run by the company and splits the sale price between the seller, the store, and the author/publisher.

    2. The transfer would have to be from one Amazon/Apple account to another, so all the DRM and sales tracking mechanism stay in place to keep a sale from merely becoming a way to pass around multiple copies.

    I’m not sure what will happen. But if I were retailing digital anything online, I’d do a lot of thinking about this. I wouldn’t rest my hopes on what some contract says. Class action lawsuits are expensive and may not go the way a company wants.

    –Michael W. Perry, Inkling Books

  4. Note that whatever Amazon sold you, it didn’t include the right to make copies “copyright” except as required for personal reading. Same is true of a paper book of course.

    OTOH Amazon are quite happy for everyone in your family to have a Kindle registered to the same account and read books.

    If the account doesn’t have a payment card attached there is no risk to you and indeed (in the US only) you and others can buy books using a different account and donate them to the sharing account.

    There is also the point that for the Eink Kindles books are not erased until registered to a new account.

    Mike D in Walton-on-Thames

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