U.S. Govt joins piracy fight

[thename]

Originally Posted by Shaggy

Actually what the courts have said is that the fine print in a license agreement doesn't matter. Their shop can not say that you are buying an eBook, and then later claim that it was really only a license.

Read the Autodesk case, it will explain the difference.

And herein lies the difference. By giving Amazon money for the ebook license (they are very much upfront about what you are purchasing the moment you look around the site) you agree to that license to download and read on their devices. You've cited 3 cases all of which are similar in general but differ in certain aspects. To me (and others who read them) they're pretty clear that you are agreeing to buy a license to use a non-physical work and are therefore bound by the license terms. The fact that you think they're offering a "sale" and not a "license" is your interpretation that you believe is held up by these rulings. Others of us feel that you are incorrect and the rulings are on Amazon's side.

Re: Autodesk. I agree there's a difference here. It's a physical piece of media conferring the right to use the software (much as a physical book confers the right to read it, give it away, sell it, etc.). First use is all over that thing. But a Kindle book file (downloaded and assumedly DRM-stripped?) would seem to confer no such first use due to Amazon's ToS (not to mention the definite DMCA-violation of stripping the DRM). I understand you read the Autodesk ruling in exactly the opposite manner but ... that's my reading. Anyone else?

So, you feel free to counsel people on their rights (their right under first sale but not under Amazon's ToS) all you want. And I'll wish all those folks who might end up in hot water because of it very good luck.

[TGS]

Originally Posted by DawnFalcon

Er...no. Gifis' "Law Dictionary, 2nd Edition":

"LICENSE: A right granted which gives one permission to do something which he could not legally do absent such permission; 'leave to do a thing which the LICENSOR [the party granting the license] could prevent.'"

"CONTRACT: A promise, or set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty"

A licence is one-way, a contract is two-way. Sorry, but this is basic law and if you really don't understand this then the conversation's pointless :/

All of which may be true but a not insignificant point is that when I buy an ebook from Amazon (perish the thought), or someone else, as a naive consumer I think I'm doing something which is pretty much like buying a pbook, a CD, a DVD and the like. I think, naively, that there's nothing wrong with lending it to my mate or selling it when I've got no further use for it.
I would probably think it was wrong to copy the CD and distribute it to all and sundry, or to scan a pbook and stick it on my blog as a PDF. Now I suspect that most consumers of Amazon's ebooks are of the naive kind like me, and we are not really concerned whether we have ownership of, or a license to use, a product. What we are concerned with is what restrictions are put on what we can do with the product having shelled out good money for it, often more good money than if we were to buy the pbook. We might also be concerned that it seems that Amazon can simply take away my ebook if they choose.

It is admittedly just a guess that most consumers are naive consumers like me, but if it is anything like a valid guess then Amazon and their ilk seem to be exploiting that naivety. Yes, they put stuff on the website that tells you that what you are buying is a license, but how many of us naive consumers take any notice or are aware of the implications of it? Our own fault you might say - but our naive model of doing business with Amazon is that they have something for sale, you give them some money and in exchange you get what it is they had for sale. Yes, consumers need to be better educated, but it is in Amazon's interest to maintain the naive belief that buying an ebook is a lot like buying a pbook, a CD or a DVD. They don't want consumers getting in a bother about license agreements, they just want you to pay your money. If the only people who bought stuff from Amazon were people who know in detail about the difference between buying something and licensing something their business model would be in a mess.

[Nate the great]

Originally Posted by thename

And herein lies the difference. By giving Amazon money for the ebook license (they are very much upfront about what you are purchasing the moment you look around the site) you agree to that license to download and read on their devices. You've cited 3 cases all of which are similar in general but differ in certain aspects. To me (and others who read them) they're pretty clear that you are agreeing to buy a license to use a non-physical work and are therefore bound by the license terms. The fact that you think they're offering a "sale" and not a "license" is your interpretation that you believe is held up by these rulings. Others of us feel that you are incorrect and the rulings are on Amazon's side.

No, it's not clear what Amazon is selling you. You acquire an ebook much like you might buy any other product: by pressing the "Buy now with 1-Click" button. It appears that you are buying the ebook, not the ebook license. Also, if you look at this page, for example. Click and read the "How Buying works" button. It suggests that you buy the ebook, not the license. Also, you should look at the format chart. It lists the Kindle Edition along with the hardback and audio. That suggests that you are buying the Kindle edition just like you would the hardback or audio.

[DawnFalcon]

Nate - And that's why it's clearly a sale under UK law. I don't believe that matters in US law, though.

[Xenophon]

Originally Posted by DawnFalcon

Okay, I can believe random person on forum or I can believe the multiple lawyers who discussed this topic in-detail on their blogs? Sorry, you're not really convincing me of anything except your will to argue.

If you look at the actual rulings involved in the argument, under them you do not "own" any computer file on which IP is present as long as there is any form of secondary licence such as a liscence agreement, ToS or EULA. You are merely licensing it with conditions - this also follows from Blizzard vs BNetD...

For what it's worth, Shaggy's interpretation matches that of the various eminent legal experts who discussed this case in the graduate seminar on IP the law and computers a while back. As always, legal experts routinely disagree on the correct interpretation of the written law and of the meaning of various court rulings. That's why we end up with subsequent cases too.

Xenophon

[Xenophon]

Originally Posted by DawnFalcon

Nate - And that's why it's clearly a sale under UK law. I don't believe that matters in US law, though.

Actually, it does matter in US law. A number of other cases (missing the references right now, darn it!) have extended Autodesk to cover exactly this issue. In US law this very similarity to Amazon's other sales is exactly what makes that eBook purchase a sale. And that holds in spite of what Amazon's EULA text says.

Xenophon

[thename]

Originally Posted by Nate the great

No, it's not clear what Amazon is selling you. You acquire an ebook much like you might buy any other product: by pressing the "Buy now with 1-Click" button. It appears that you are buying the ebook, not the ebook license. Also, if you look at this page, for example. Click and read the "How Buying works" button. It suggests that you buy the ebook, not the license. Also, you should look at the format chart. It lists the Kindle Edition along with the hardback and audio. That suggests that you are buying the Kindle edition just like you would the hardback or audio.

I agree, Amazon does not come right out and say "you're buying a license" but it does delineate that in the ToS for the Kindle which you've agreed to buy purchasing a Kindle/downloading Kindle software. These terms are listed (and fluid) and--apparently till a court rules otherwise--seem to contractually bind you into a license agreement. Similarly, the very act of purchasing anything from Amazon signals your agreement to a huge slew of ToS tucked in all over the site (what the EFF calls "Browserwrap")

I'm still unconvinced that the "I thought I was buying a book" defense will hold up in the face of Amazon's myriad terms/licenses but very much appreciate this forum's lack of cynicism.

[DawnFalcon]

Originally Posted by Xenophon

Actually, it does matter in US law. A number of other cases (missing the references right now, darn it!) have extended Autodesk to cover exactly this issue. In US law this very similarity to Amazon's other sales...

"The court cannot characterize Autodesk's decision to let its licensees retain possession of the software forever as something other than a transfer of ownership, despite numerous restrictions on that ownership."

And that's half the point. If there are restrictions on the owner which can generate a breach of licence, then that breach - even if not in itself actionable or even permissible - is also a copyright violation and thus de-facto actionable. The other half is that a supplementary post-sale licence agreement was agreed to by MDY industries, and it was that - and not the sale of the disk to them - on which they were judged.

It may well be that the precedent set in Blizzard vs MDY Industries is overturned - and I believe it's not well regarded - but in the meantime it does create a considerable issue.

[thename]

Originally Posted by Ralph Sir Edward

I meant what I said. (I may be wrong, but I'm not uncertain!) HD signals, as opposed to standard definition signals, are not allow to be carried via component signals for any equipment made after either 2004 or 2005, (I forget which), but only by HDMI cables thereafter. Equipment made before then could use component cable to transfer HD signals.

(This is a perennial pain in the backside for me, personally. I run a Mitsubishi 46 inch HDTV built in 2000. There was no HDMI then. Therefore, I can't use any "upconverting" DVD players to upconvert the signal, because the US law doesn't allow then to output via component cables, only HDMI, which my TV doesn't have. And I refuse to scrap a perfectly good, working HDTV with a nice picture, that cost me $3,000....)

Yes, there are DVD players with "hack codes" to allow component upconverted signals, but they are much fewer and farther between.

BlueRay is it's own animal....

Thought I'd point out this little gem about the issue of which you speak: AACS analog sunset. Can't wait till even existing component outputs have new content down-rezzed to 480p!

[DawnFalcon]

Brilliant way to slow Blu-Ray adoption, yes.

[troymc]

Originally Posted by Xenophon

Actually, it does matter in US law. A number of other cases (missing the references right now, darn it!) have extended Autodesk to cover exactly this issue. In US law this very similarity to Amazon's other sales is exactly what makes that eBook purchase a sale. And that holds in spite of what Amazon's EULA text says.

Xenophon

An interesting point might be "What does an Amazon receipt show?"

Does the receipt show you bought an ebook? or a license?

If the receipt says ebook, then "bait-n-switch" comes to mind.


Troy

[thename]

Originally Posted by troymc

An interesting point might be "What does an Amazon receipt show?"

Does the receipt show you bought an ebook? or a license?

If the receipt says ebook, then "bait-n-switch" comes to mind.

I checked the Sony Reader Store for this very question a while back. They list your purchases on the summary as "You have purchased X eBooks" and details appear under "My Purchased Content." That seems a very careful parsing of the words. Sounds reminiscent of Rebecca Tushnet's noting "DRM is carefully designed so that it will almost never make a consumer mad."

[Harmon]

Originally Posted by dmaul1114

I just never have understood, or respected, people that don't respect intellectual property rights and expect artists, authors, record labels, publishers etc. to just give away their work or sell it at some low price they deem acceptable.
.

Well, there are some other matters beyond mere price. Take a look at this, for instance: http://yepyep.gibbs12.com/wp-content...0/02/GxzeV.jpg

[Harmon]

Originally Posted by thename

Thought I'd point out this little gem about the issue of which you speak: AACS analog sunset. Can't wait till even existing component outputs have new content down-rezzed to 480p!

Yet another reason to join the Tea Party. Our government doesn't represent us. It represents whoever can buy enough congressmen.

The last part says it all:

We make no bones about calling out Hollywood studios on their ignorance, anti-market practices and general thick-headedness. These AACS rules are especially frustrating because they, like those FBI and anti-piracy warnings on discs, only affect users intending to legally copy software to a local hard drive. The AACS rules will have absolutely zero effect on actual piracy since the Blu-ray Disc's AACS/BD+ system has already been broken and spread far and wide across the Internet.

Incidentally, it's this kind of situation that breeds disrespect for the law to the point where people simply don't obey the law unless they think they might get caught. In the arena of technology, I think we are raising generations of kids and young adults who don't believe that it is wrong to disobey the law. I don't know whether that viewpoint will be confined to technology, or will break out into other parts of the law. But I think it's a long term risk.

[Neil]

<<Hopefully this federal involvement will deal with shutting down major file sharers and pirates and not bother with DRM stripping that doesn't involve file sharing, torrents etc.>>

Probably a lot of people in pre-Fascist Italy hoped that the government would just make the trains run on time and not bother free assembly. Once a government has been given (or assumes) absolute power in any area of Life then all of History shows it will use that power absolutely.