Friday, July 31, 2009

Kinder Gentler Kindle

Apparently, according to one of my colleagues, there was a brouhaha a few weeks ago because Amazon went into people's Kindles and took back some e-books by George Orwell to which it did not have the rights. Yesterday the first lawsuit was filed, seeking to assert damages on behalf of a class as well as an injunction to prevent Amazon from recalling e-books on Kindle.

How can Kindle recall an e-book legally? Simple. The relationship between Amazon and the Kindle e-book buyer is not the same as that in the brick and mortar bookstore. You do not own the copy of the e-book, you merely license it. Therefore the doctrine of first sale under copyright law does not apply. Music and motion picture downloads work according to the same principle. You license the music of movie on your iPod. You do not own the copy, like you own the particular copy of the DVD or CD. Incidentally, just because there is a first sale doctrine does not mean that you can do anything you want with the contents of the DVD or CD. One of the fallacies we have seen with respect to the RealDVD product is that people believe because they own a copy of a DVD they have the right to copy it as many times as they want. People understand that it is illegal to photocopy a book they own for someone but do not understand that they cannot legally copy DVDs or even CDs. Part of the problem, of course, is that the music industry did nothing to prevent the copying of CDs, i.e. they did not use DRM (digital rights management) so it is easy to "rip and burn" a CD. DVDs do have copy protection and although you can find a program on the internet (typically with tasty viruses attached) to circumvent, copyright law in the form of the DMCA (Digital Millenium Copyright Act) makes in illegal to do so.

People, however, do want to own a copy of the e-book even though everyone with a Kindle knows you cannot lend your e-book to your friend unless you give her the Kindle too. Amazon would seem to have made that clear in their Terms of Use in that they talk about nonexclusive license of the Digital Content in par. 3. But wait. Amazon may have made a boo-boo. They grant to their Kindle customer "the non-exclusive right to keep a permanent copy" and even though they condition it as a license and say it is solely on the device or as authorized by Amazon as part of the Service, a permanent copy would seem to be one that the purchaser gets to keep no matter what. I think it is a stretch to say that the "as authorized by Amazon as part of the Service" limits the permanency of the copy the purchaser gets so long as they have a Kindle. So Amazon must rely on its license language and argue that it trumps the "permanent copy" language. Under the circumstances, I am not sure why Amazon did their own recall. Even if the e-book was an unauthorized copy of the George Orwell books, it is unlikely that a court would issue a injunction with a recall of the e-book from the devices, although not out of the realm of possibility.
On the other hand, I do not see the viability of a class action lawsuit here. How is the class damaged, given that Amazon is returning the fee paid for the retrieved e-books? The teenager suing in Seattle claims his notes on the Orwell book are now useless since they are not connected to the e-book. Please. Even if they were useless, what is that worth? Must we be compensated for every inconvenience and lost time in this society. Amazon says that they will not do a recall again so what is the point of clogging the courts with litigation seeking an injunction?

The views expressed herein are my own simple ramblings and not necessarily the views of my employer or anyone rational. As any good lawyer can, I will talk out of the other side of my mouth if my company were ever to "pull back" its digitally distributed content.

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