Comments on: Making sense of the '1984' Kindle kerfuffle
Amazon remotely deleted pirated copies of "1984" and "Animal Farm" it unintentionally sold to Kindle owners, and suddenly everyone from CNET to The New York Times is in an uproar.
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Silicon Valley-based computer architect and chip analyst Peter N. Glaskowsky attends a variety of industry conferences throughout the year to meet with industry thought leaders and dig into the future of computing technology. In Speeds and Feeds, he analyzes trends in system architecture and interface design, as well as market and political pressures surrounding those trends. He is a member of the CNET Blog Network and is not an employee of CNET. Disclosure.
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Anyway, it pointed up a security weakness. Every time you turn on the wireless, Amazon.com can screw with your content. What keeps them from screwing with non-Amazon.com content? I cancelled all my Kindle periodical subscriptions and told the various editors why. Now, I download books to my computer and run them over to the Kindle via the USB cable and read the periodicals online. If Amazon.com comes up with a way to deliver the periodicals the same way, I might look at resubscribing.
If Amazon.com had come to its customers as if they were free and possbily honest people and told us what the problem was, I for one would have cooperated and dumped the offending edition. The fact that it was Orwell was just icing on the cake.
I guess it's a case of the techs see a GREAT IDEA and forget to run it by the folks who might have some feel for how people work.
Like my old Gunny used to say, "They had to study to get that dumb."
Amazon's mistake enabled the bogus outrage we've seen from so many other bloggers, and it was that bogus outrage that it was responding to when it knuckled under.
Amazon may yet regret that statement. In fact, Amazon may yet reverse its effect, perhaps by adopting a new policy in which the company sends the notification letter an hour or a day before removing the file, or by putting in place a rebuttal mechanism by which a user may request the return of the work under appropriate circumstances.
If they really want to be useful, they can give the users an alternative way of purchasing that ebook.
Perhaps a more appropriate analogy would be that a company commits illegal corporate espionage on some other company and then makes a bunch of TV's based on the design, one of which you buy. The whole thing gets discovered and you come home expecting to watch that week's 'Lost' (or whatever). Instead, you find that your TV has disappeared without your knowledge or consent, because it was built based on illegally obtained designs.
I must say I'm impressed by all the effort that has gone into arguing analogies.
All of these analogies are wrong since you granted Amazon the right to delete the book. If you take the TV analogy, if when you bought the TV you signed a contract that allowed Best Buy to enter your home and retrieve the TV and compensate you for it, if they determined that it was stolen property, you cannot complain that Best Buy exercised the right that you gave them. This is the same thing that Amazon did, the purchasers of the Kindle granted Amazon this right. In no way has Amazon done anything illegal, the only thing they are guilty of is bad PR.
If anyone is guilty it is the purchasers of the illegal e-book. If a copy of the book is selling for 10% of the normal price you have to ask yourself why, apparently it is in the public domain in some countries and that is why it is so cheap, apparently this information was readily available on the page for the $.99 book. You have to then ask yourself how many people realized that this was an illegal book and bought it anyways. The readers are guilty of the receipt of stolen property. It doesn't matter if the reader actually new that the book was stolen it matters if they should have known. A fitting analogy is if a guy walks up to you on the street and offers to sell you a 24k gold necklace for $50 when it has a $500 price tag on it, you should have known that it was likely stolen goods, if you purchase the necklace you could be charged with receipt of stolen property even if you weren't 100% sure that it was stolen.
I am not saying that the purchasers should be charged, but they could be. Amazon did nothing illegal and in no way could be charged for what they did, they had every right to do it and acted responsibly.
Should Amazon have better informed the customers and the press, yes. Should they have just removed it from the store and left it on people's device's, from a business standpoint probably yes. Should Amazon better control the content that is allowed on the store to prevent illegal copies, maybe it depends on if you want it to turn into the itunes app-store where people complain about Amazon's arbitrary decisions of what books to sell on the Kindle.
It's the seller of the book that has the primary responsibility to verify copyright status. The listing I quoted from in the original post is the one that really bugged me-- that seller clearly knew there were potential legal problems with the sale and tried to shift the blame to the buyers. That was just wrong.
I think you're making an excellent point about the difference between the Kindle store and the iTunes app store: Amazon doesn't exercise prior restraint, and Apple does.
It doesn't take much web searching to find thoughtless cranks complaining about both approaches.
There was no other copy available.
Based on this, how was I to know that this was not a legit copy?
There also has to be some blame on publisher here. People obviously want to buy these books on Kindle format.
By not giving people access to buy them, they are not only leaving money on the table, but they are creating a market for pirates to do what they did in this case.
It is not written anywhere in the EULA or ToS!!!
http://www.amazon.com/gp/help/customer/display.html?ie=UTF8&nodeId=200144530
Please people, read it before spouting off about things that you are making up.
End User License Agreements (EULAS) are adhesion contracts and the buyer have NO reasonable way of reaching an agreement with the seller to add, remove or modify any of its stipulations. Furthermore, the manner in which such contracts are made and the style in which they are written make it impossible for many people to even know what they are deemed to have agreed to.
Many courts have overturn EULA when the users take the company who wrote the EULA to court.
Stop treating EULA as gospel.
Yes, Amazon should have warned the customers first, but even so, I will continue buying Kindle books. In this case, people who bought and read the 1984, for example, are actually the winners, since they got to read the book for free :)
The EULA means nothing when the maker advertises in bold and says many times that when you buy an e-book it's like buying a real physical book. The shouts of the company will always override the fine print in any court of law.
You buy a book at a physical book store that they didn't have the right to sell it to you. That bookstore (let alone the police) do NOT have the right to physically come and remove that book from your person without a court order, and no court would ever order this to happen on this scale.
Another book analogy works the same way. The advertisement always tells you to take your Kindle to the beach anywhere you vacation. But, with these actions by Amazon, they then have the right to remove books you've purchased legally when you travel to a country in which that book is banned. There is no argument that anyone can make that makes this right or legal. Amazon was wrong to delete files after touting that these books are equal to and superior to physical books. There is no reason anyone should continue to buy books from a company who thinks they can (by some fine print that no-one reads and contrary to the advertisement of the device) remove items stored on it. Period.
It's a good thing there are no physical books involved in this argument.
There are many reasons to continue buying Kindle e-books. This situation doesn't affect any of them.
While I completely disagree with you, I would like to thank you for causing me to really think about this topic which i had not done previously. You have provoked quite a discussion
I will now be much more aware of and avoid any company that treats it's customers like they have no rights. You have helped that effort in that if I can determine they have anything to do with you I'll go the other direction.
Thank you
I'm sure you're very happy and content with yourself.
There are hacking laws about unauthorized access to computing devices. Amazon broke those laws.
The issue here is why anyone would want a Kindle. When I have a physical book, the content will not disappear overnight. As far as I know, no one can remotely enter my computer and delete files they might decide I should not have. The fact that Amazon can do this with the Kindle should be reason enough for those of us who viewed it as an expensive toy to congratulate ourselves for our decision to pass. For those unfortunate enough to have bought one of these things, now what? Turn it on and wonder what will be there each day? Apparently not heavy enough to serve as a door stop, but might make a good paperweight.
In the end, it's all about respect. Amazon should respect the Kindle owners and trust that Kindle users will do the right thing and delete the files in question themselves.
Mr. Glaskowsky should respect his readers' points of view.
Amazon could have prevented the book from ever being offered for sale and they didn't. That was their error and they should pay for that. A hacker didn't break in add the listing to their website.
Since they messed up and allowed the book to be sold through their store, they should have provided a legal copy to the purchasers and then sued the seller for whatever they could get to reimburse themselves for that cost. Even if they only got a fraction of the money back from the seller, it would have still been much cheaper than the PR disaster.
Amazon just needs to take steps to prevent this from happening instead of relying on being able take eBooks back after the fact,
The best thing Amazon could have done is negotiate with the author and publisher so they can be properly compensated, so they don't need to refund the money and all this PR issue would have gone away very quickly.
The person who posted the the ebook could still be liable, I believe if it's determined that he knows that the ebook is copyrighted.
But overall, you're right. Most of this is Amazon's fault. The user will certainly be inconvenienced to find that the book that he's been reading almost through the end is gone! What's the ending? Aaarrgh... It maybe a bit funny, but a Kindle user can probably try to argue mental anguish over this issue -- and they might win depending on specific circumstances. Class action suit, anyone?
I was saying the cost of producing more e-books is essentially nothing, as it's just sending data. Yes, there is some real cost associated with having servers and bandwidth and software, but the 'just one more' cost is zero. My point is that I am not keeping someone from reading their e-book by having mine provided by a publisher without the rights to it, so the car analogy fails.
And I'm less concerned about the legality of Amazon's action as the ridiculousness of it. I don't care if they can do it legally, they shouldn't. I would also doubt that they can do it legally, as buying an e-book looks like a sale, which you can't enforce conditions on. There was a relevant court case about CDs sent to stores for publicity and how the sticker saying that they can't be resold is not legally binding.
On an unrelated note, it is nice to see that you are responding to comments here. Often, on other blogs, the authors never reply. Well done!
As to Peter's responses I'd agree with you on giving him kudos if the responses themselves weren't so snarky and combative. Especially since he's presenting himself as an expert on the legal matters involved when he clearly is not.
This is one of those situations, like the Betamax case, where technology has moved ahead of the law. Nobody can be an expert in how the law applies to such situations.
Not being a lawyer or an expert in the law, all I can do is talk about what I believe to be right. In this case, the technology of remote management has created a new way to resolve a specific new kind of copyright problem, and I think Amazon was right to have used this new method-- and more generally, right to take advantage of new technology to solve new problems.
Many people have asked How does Amazon have the police powers to do this?" Well, Amazon doesn't need police powers, because...
...Kindle owners, by using their Kindles, have accepted the end user license agreement. And the end user license agreement gives Amazon the right to do what they did.
Kindle owners contractually consent to this. It's in the EULA--that thing that most people agree to without reading. If you feel violated by that, well, then let that be a lesson to you: read what you agree to before you agree to it.
End User License Agreements (EULAS) are adhesion contracts and the buyer have NO reasonable way of reaching an agreement with the seller to add, remove or modify any of its stipulations. Furthermore, the manner in which such contracts are made and the style in which they are written make it impossible for many people to even know what they are deemed to have agreed to.
Many courts have overturn EULA when the users take the company who wrote the EULA to court.
Stop treating EULA as gospel.
"There is no privacy violation," "Grow up"--these are not replies by a writer, but by a kid who feels threatened. You're not taking any time to understand why people are saying what they are, and I think you're missing out on the best parts of the conversation by trying so desperately to seem like the smartest guy in the room.
I've never read you before, but as an IP attorney and tech nut, this case interests me greatly, so I've been reading everything I can on this. I'm surprised that CNET is letting you post and harass its readers like this, and I'm certainly not going to be reading CNET again any time soon!
http://en.wikipedia.org/wiki/Dowling_v._United_States_(1985)
Illegal copying doesn't create stolen property.
"The section's language clearly contemplates a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods."
There are no physical goods in this Kindle case, as there were no physical goods in Dowling.
But all this establishes is that 18 USC 2314 doesn't apply. Logically you can't conclude anything about the legal status of these pirated Orwell e-books from that fact alone.
Obviously, these e-books aren't physical stolen property at all, and nobody has said otherwise (although many people here, including myself, have offered misguided analogies along those lines).
But these e-books weren't the intellectual property of the publisher who tried to sell them on Amazon. They weren't Amazon's intellectual property. And they didn't become the buyer's property either.
Dowling set up that copyright infringement does not yield stolen property. (If it did, 18 USC 2314 would have applied.) So you're wrong to center your analogy on stolen property -- it's a variable independent of copyright infringement, and it doesn't even come into play here.
Rules regarding stolen property DO NOT APPLY, so get off that horse.
IT IS NOT LISTED IN EITHER ONE THAT THEY HAVE THE RIGHT TO DO THIS!!!!!
SEE FOR YOURSELVES INSTEAD OF BEING MINDLESS MORONS POSTING THAT 'WE ACCEPTED THE RIGHT FOR AMAZON TO DO THIS'!!!!!!
TOS here:
http://www.amazon.com/gp/help/customer/display.html?ie=UTF8&nodeId=200144530
and quite honestly, why should I have to follow changes made AFTER i bought my Kindle?
But then, it doesn't really have to be.
Consider: when one "buys" an e-book from the Kindle store, one is really just getting a license to use the content. The license "grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content".
If Amazon has no legal right to provide such a license, the buyer doesn't get a license, and thus does not get the right to keep the content.
But it is up to a judge or jury to make that determination.
In unilaterally enacting a remedy, Amazon took the law into their own hands.
Technology has made it possible to solve copyright problems in a new and useful way. Amazon apparently believed it had the right and the obligation to use its technology to solve this problem.
If people believe Amazon acted inappropriately, they can always sue Amazon.
How do you suppose that'll go? What do you suppose the complaint will say?
"Amazon deleted something I had no right to possess, and I want it back!"
As I said elsewhere in these comments, Amazon routinely deletes files from customers' Kindles as a feature of the Kindle service. They've done this millions of times by now. That fact establishes that Amazon's user agreement does (and must) give permission for remote management and that remote management is a routine part of Amazon's business practice.
There was no intrusion into customer privacy, as far as we can tell. Amazon only removed these e-books from exactly the same Kindles where Amazon installed them in the first place, so it had legitimate knowledge that the books were present. We have no reason to believe Amazon knows anything about any other files on these Kindles, or any others.
What else would someone complain about? Please, tell me.
Just like we don't need bloggers involved in every human activity.
And Zyklon B could have solved the Jewish problem.
The presence of a solution does not beget the right to implement it.
If so, I invoke Glaskowsky's Exception to Quirk's Exception. If a person invokes Quirk's Exception against himself, it doesn't apply.
No. So continue with a real reply.
I have never knowingly read any of your work before. Having now done so I may say that I'm deeply unimpressed. Since your bio doesn't mention it, I'll assume that you do not hold a law degree; yet you strut around these comments as if you were Billings Learned Hand himself. Variously telling your readers which legal theories matter and to "give some small amount of thought." The same could be said for you good sir.
No "bizarre legal theory" [ as you styled it] is necessary to determine how bona fide purchasers in good faith should be protected from unilateral action by a purveyor of goods who is in fact in error. there are any number of theories and areas of law that concern this matter that give credence to the natural outrage that people are experiencing concerning this matter.
Your Pollyanna ' oh for heaven's sakes' nonsense; coupled with an incredible amount of hubris for a man who has no idea what he's talking about ensure that I shan't be reading your drivel again. But in the meantime, since you're going to be playing lawyer-- you should consider reviewing the principles of equitable estoppel, the general concepts concerning adverse possession [ of course the claim to being adverse here is tenuous], and general principles of public policy governing the sale at issue here.
More importantly, at least for Amazon, is what this decision has done to its good faith with its Customers. I was reading e-books on my Psion on back in 1997. Project Gutenberg is your friend. I'd love to have a Kindle-like device for cases and briefs while I'm in court. The Kindle itself; however, in my view is not ready for prime time. It's overpriced and underpowered. This 'kerfuffle' gives people real cause to question Amazon's judgment.
Your 'article' which should have been entitled; "Making excuses for the Kindle" gives people real cause to question your judgment. Your rants in response to your readers even more so.
[ dictated not proofed]
I _really_ don't get the connection to adverse possession.
I don't even think there was any sale.
But really, if you'd like to explain any of this, I'm listening.
Since your reply his carefully crafted in a manner intended to indicate that you intimately familiar with both doctrines, it should be quite elementary for you to apply the principles and concepts, respectively, to the instant case. You are the one putting on these airs; I must assume that they are not empty.
I have also seen your statement about there not being a sale but rather a lease scattered liberally about the discussion board. You see my discussion with 'Thisplaceisfun' and, once again, presumably understand what a contract of adhesion means. You also seem to understand why equity matters. So given that introduction I'll ask you a simple question:
What does the button you push to it to your leasehold with Amazon say? [If you can direct me to one that says "Lease Now." I'll give your position a whole lot more credence.] If it says BUY NOW or BUY, your posit is going to face some extreme difficulty [EULA] notwithstanding from even the most inept opposing council imaginable.
These books are licensed, not leased. Amazon's use of the term "buy" in this context is consistent with common usage.
Are you SURE you're a lawyer? Check the fine print on that sheepskin.
The common usage?? Please do go on. If your argument is that the average person [read as 'reasonable person'] can be expected to know that when they click a buy now button that what they're in fact getting is a license, lease, or some similarly imperfect ownership of the re at issue you're sadly mistaken. Again, the same principles that govern adhesion apply here.
DragonNS doesn't always nail 100% of what I say and, as noted above, I'm not proving [proofing] this stuff. <---- 'cept here to prove the point. We have both engaged in a few ad hominems so, I'm not going to sweat that, nor will respond to your sheepskin jab. You have a firm position, that seems to be enough for you. What is that phrase... ' _______ is bliss.'
No, the button says "buy," but as I said, that's a reasonable way to summarize the purchase of a license to intellectual property. The terms of use explain the exact nature of the transaction, which is also a reasonable practice and well accepted in the case law. (If I'm moving too fast for you, just let me know and I'll type slower.)
In either case, the point that you do not wish to concede [for good reason] is that buyers are not alerted in any effective manner the what they are entering into is "ownership" of copy of the bytes that they're receiving from Amazon. So, your belief that there was no sale doesn't resolve the matter. Does Amazon hold the transaction out in a manner that would be confusing to a reasonable person under the law? When you say 'buy now' to lay people on the Internet you are not conjuring up the image of a licensure. Burying the true nature of the transaction in a EULA is unlikely to be sufficient at law to establish your argument. Nor is it likely to be deemed sufficient to ameliorate the inherent confusion, by any of trier of fact.
But hey Learned Hand you're the expert, I just practice law for a living. Chortle.
Your argument is that because the technology allows to perform self-help (replevin) of the data at issue that they are justified in doing so. It's Monday, the weekend is over and I have to get back to work so I'm going to see this plainly and simply:
Amazon's need to protect itself from a potential lawsuit by the copyright holder of works that it placed on its website erroneously does not in viewing it with the ability to infringe upon the rights of bona fide purchasers of the said work. Contrary to your personal opinion and your 'legal' analysis Amazon does not have the right to act with impunity in the manner that they did.
The law as written is not meant to govern this set of circumstances. As I've said previously, laws written by men are inherently flawed and are always subject to interpretation by the courts. I am a civil defense litigator. So, my clients are exclusively corporate entities. My job is to solve my client's problems. Some overzealous rookie at Amazon saw a way to solve an immediate problem (which probably came in the form of a cease-and-desist letter that they received from counsel for the copyright holder). They talked to someone in engineering and determined that an easy way to get out of this would be to simply delete the files from effected devices. Quick, simple, painless.
'Cept they forgot one thing. Amazon is in the business of selling stuff on the Internet, and [they hope] through Kindle. They are going to need customers for that. Without regard to your expert opinion that the outrage expressed by Amazon's current and potential customers is "bogus" -- Amazon has lost a fair amount of goodwill.
I've clicked that 'buy' button exactly once on my phone Kindle app. I shan't ever click it again. The chances they'll ever purchase a Kindle are far closer to nil than they were before this incident. I've got to believe that those facts cannot make Amazon happy. One thing is clear, they will not have to worry about infringing on anyone's copyrights if nobody is knocking at the door ( clicking the 'buy' button).
You seem good at it.
Do you practice in Philadelphia?
What is very disturbing is the ABILITY to erase files in devices that people thought they controlled, and raises a whole nightmare that even Orwell barely perceived. What if the Government or worse a private company could rearrange any information you had stored where you thought it safe? Not just stealing the books from your library but re-writing them!
1984 indeed.
PRECISELY! What Amazon has done is to find a shortcut. They have taken unilateral action against a bona fide purchasers in order to escape the consequences of their own mistake against the original copyright holder. This is highly problematic and highly inappropriate.
This is why our authors analysis regarding whether sale happened or not is incomplete. Our legal system protects bona fide purchasers. The copyright holder is not the only person in this scenario with legal rights. What is needed is careful analysis of the situation. Balancing of the rights of the individuals involved. Mere bloviating about what copyrights mean and how important they are misses the point. These are the laws of men, they are inherently flawed.
No one has stolen a car here the analogy is inapt. This is, on some level, about a nation that is allowing corporate culture and the needs concerns of corporations (fictional/ constructive entities) to at nearly every turn trump the interests of the actual physical beings.
A word to the wise.
- by dangarom July 19, 2009 8:32 AM PDT
- "The police would do the same thing if they discovered a stolen car in your driveway: just take it away. You never owned it."
- Like this Reply to this comment
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- by mensrea1 July 19, 2009 8:43 AM PDT
- "Amazon is not the police."
- Like this
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- by Peter N. Glaskowsky July 19, 2009 2:16 PM PDT
- The publisher that offered to sell a book it had no right to sell is the only wrongdoer here.
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- by chrisx1 July 19, 2009 5:36 PM PDT
- "Amazon acted promptly and responsibly, completely reversing the adverse effects of the original problem."
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- by mensrea1 July 19, 2009 5:41 PM PDT
- No, they acted hastily and recklessly to do damage control without considering the consequences of the planed action. Without regard to whether YOU think the hubbub is justified; Amazon has a problem on its hands of its own making, there are going to be consequences. My counsel would have been very different.
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- by Peter N. Glaskowsky July 20, 2009 5:24 PM PDT
- Oh, I see! You're a plaintiff's attorney. Your mother must be so proud.
- Like this
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Showing 4 of 6 pages (374 Comments)Amazon is not the police.
"In truth, this case shows another benefit of digital distribution and remote management: they make it more difficult for greedy pirates to make money at the expense of others. "
Amazon is not justice. If someone is a pirate or not, that's the justice job to decide.
And this also show the power they have in their hands. Suppose they can change the content of the books, much like software is patched today? Imagine a world without physical books, no written information, only digital content. A individual would have no way to confront the established "truth" in such world. That is exactly what 1984 is about.
Alas, what happened to the North Americans? Why they gave up their rights so easily for so little.
Again, precisely! In fact, Amazon is the only wrongdoer in this situation. They've compounded the initial wrong by snatching property away from bona fide purchasers in order to shield themselves from action by the original victim of their malfeasance (the copyright holder).
Amazon acted promptly and responsibly, completely reversing the adverse effects of the original problem.
Yes, the tool Amazon used-- the technology of remote management-- could be used in harmful ways. But all tools can be abused. That isn't a new or notable observation, and it doesn't seem to justify all this controversy.
No. They are the cause of the original problem. Acting promptly and responsibly would have meant denying the listing from their site. It is their site and they need to monitor what is on their site to prevent this so buyers don't have to worry about it.
Maybe they need to stop allowing fly by night operations to sell digital books or anything else that could be bootleg.
They need to check the merchandise before, not after transactions are completed.
What they, and you seem to have forgotten is that Amazon is not in the administration of justice business. They're in the business of SELLING stuff. For that you need CUSTOMERS. Preferably HAPPY, TRUSTING customers. I wonder if the obvious flaw in the chosen course is illuminated?
You style this as that saw a problem and took appropriate corrective action pursuant to the words contained in the EULA and as could be accomplished via the technology. So in sum, they 'could' do it. While that's great, if you're looking at through the eyes of an engineer. Black/White, on/off, yes/no, can/can't, 0/1 - our laws and our world are a bit more complicated. 'Should' they have done it is the more pertinent question. It seems to me that the customers have spoken, Amazon has listened. As they must, if they wish to survive and flourish.
I can assure you that if someone asks my opinion as to whether they should by Kindle, this incident will be discussed in my advice will be probably not.
You seem to lament this as some sort of mob rule against the rule of law. The controversy is justified because the customer says that this action is controversial. The customer is always right.
Don't be led astray by the intensity of the controversy _here_. Most people don't believe in getting something for nothing. They don't believe in exploiting holes in the system. If someone makes a mistake, they believe in putting it right. Once they understand what Amazon did-- and my purpose in writing the original article was to provide that understanding where other bloggers were just trying to create controversy and confusion-- they'll support Amazon.