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Old 07-03-2009, 11:59 PM   #76
daffy4u
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Originally Posted by Elfwreck View Post
It's been ruled in court that a "permanent license to use" is a sale, regardless of what the seller calls it. The seller can't demand that there's no resale rights, or that the purchaser cannot allow others to view the content.

This relates to two cases: one where someone was reselling boxed software on eBay, and the company wanted to claim copyright infringement (how, I'm not sure; it was the original box & CDs being sold); the ruling from that drew from an older case involving movies that had been sold with the criteria that they couldn't be resold or watched, and other movies that had been sold as cellulose scrap and the producers were outraged to discover that some of them were being resold as movies, not as plastic.

The rulings hinged on the concept of permanence: if there was a schedule or expectation of returning the content, it was licensed; if the purchaser was not expected to return it, it was a sale.

(Since digital content is rather ridiculous to "return," I think it's likely they'd assume time-limited DRM as the "return" policy--hence DRM'd library books are licensed, not sold/given away.)

Since Amazon makes no claim that the books must be returned, or deleted, after any particular time, nor in a given set of circumstances, they're sold, not licensed. Amazon is lying to its customers in the hopes that none of them will have big enough lawyers to challenge that.
I'm not a lawyer so I can't argue for or against what you've written. I don't know the cases you're writing about and even if you had provided links to them, I am no longer inclined to pursue this subject and have no desire to be a court test case.
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Old 07-04-2009, 01:26 AM   #77
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I am not a Kindle owner, but is there no kill switch like on a jailbroken Iphone?
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Old 07-04-2009, 02:03 AM   #78
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Not stolen property

This is not stolen property. It is impossible to steal IP unless you physically take a person's last bit of media. (I've had my IP stolen by criminals representing the BSA, but that's another story.)

The correct precedent is the sale of physcial items with unlicensed use of trademarks. For example, what if I went to the store and bought a Mickey the Louse book bag, then Dispairsney sent the store I bought the book bag at a letter saying it was bootlegged. The store broken into my home to take back the book bag. When I caught them in the act, they pointed to a store policy that I had never had the opportunity to know existed that said they could do whatever they wanted.

Clearly, Amazon is on the hook for computer crimes. I just resigned my PayPal and ebay accounts over absurd TOS, now it looks like Amazon is going to be on my black list. It's a shame.

Andy

P.S. Does anyone know a lawyer in California who will take an identity theft case against eBay and PayPal?
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Old 07-04-2009, 03:22 AM   #79
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Let's be proactive......or just vent on a forum.
I'm more than happy to be proactive, I won't buy one, nor any of the content for one.
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Old 07-04-2009, 03:24 AM   #80
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Again, for the last time, poor analogies of stores breaking into your house to retrieve bootlegged items and Amazon monitoring everything that is on is on your (nonexistent) Kindle are uncalled for.

3000+ books are added to the Kindle store every single day and anybody is able to upload material. Amazon can't possibly look at everything.

Some guy uploaded a darknet version of Ayn Rand's books.

When Amazon found out, they recalled the books and refunded everybody's money.

That's it.

This isn't Amazon searching every Kindle and deleting every book with that title.
This isn't Amazon deleting all of your warez darknet copies off of your device.
This isn't Jeff Bezos breaking into your house and stealing your children's Christmas presents.

All of these what if scenarios are just unsubstantiated fearmongering.

There has only been two instants of Amazon actually deleting files.

1) When some knucklehead uploads a pirated copy of somebody's story to the Kindle store.
2) Non-payment for Whispernet delivery/conversion in which case the files that were delivered are removed.

There have been multiple books removed for sale from Amazon's store for other reasons and they are still available to everybody who purchased them. For example, when Stephen King's The Stand was pulled for months, I was still able to redownload it. Same with anybody who bought Boyd Morrison's books for the Kindle store. Boyd pulled them but people who purchased them still have access.

Last edited by Sporadic; 07-04-2009 at 03:32 AM.
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Old 07-04-2009, 09:00 AM   #81
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Originally Posted by Sporadic View Post
Again, for the last time, poor analogies of stores breaking into your house to retrieve bootlegged items and Amazon monitoring everything that is on is on your (nonexistent) Kindle are uncalled for....
+1

Concern over this makes sense, but ultimately it isn't a big deal, especially as there are plenty of viable alternatives in the market (and will be for the foreseeable future). Straw man arguments about Amazon deleting arbitrary content are not exactly impressive....
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Old 07-04-2009, 01:05 PM   #82
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Originally Posted by Kali Yuga View Post
+1

Concern over this makes sense, but ultimately it isn't a big deal, especially as there are plenty of viable alternatives in the market (and will be for the foreseeable future). Straw man arguments about Amazon deleting arbitrary content are not exactly impressive....
I think this is a big deal. More and more I buy besides books, software from the Net rather than from a store. I don't want to find out that any company can troll around and remove products from my PC. Not to mention the Amazon model may eventually be the dominate one. Once the other readers have Wifi we may all be connecting directly to booksellers from our readers.

The other viable argument is also suspect in another way. If a company discriminates and refuses to provide services to a group of people for ethnic or other reasons, is that ok because there maybe other companies around to provide a similar service. This isn't a discrimination issue but I believe to say look elsewhere is disingenuous at best.
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Old 07-04-2009, 01:27 PM   #83
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Quote:
Originally Posted by Sporadic View Post
Again, for the last time, poor analogies of stores breaking into your house to retrieve bootlegged items and Amazon monitoring everything that is on is on your (nonexistent) Kindle are uncalled for.

3000+ books are added to the Kindle store every single day and anybody is able to upload material. Amazon can't possibly look at everything.
It's their store. They have an obligation to make sure what's being sold there is legal content.

Physical stores don't get away with, "Oh, I didn't realize those books hadn't been released for the public yet; we'll just go grab them back from everyone who bought them." The handful of stores that sold Harry Potter books before the release date got in serious trouble for it... the customers did not.

And if IP is comparable to physical property, with a legal right to remove it from someone who bought it in good faith... then the company that sold it is liable for promoting stolen goods. "I didn't realize that truck was full of contraband when I bought 500 iPods for $40 each" is not an argument that'll hold up in court.

Amazon is responsible for what's sold on their servers, using their software, in their store. Saying "oh, there's too many to monitor" is no excuse. If they don't have the staff to monitor book uploads, they need to allow less books until they do have enough staff.

If Amazon wants to play the part of publisher for ebooks, they get the same legal hassles as other publishers, including the headaches of trying to sort out IP law violations.

This one caught people's attention, as did the previous Harry Potter ebook sale-and-removal. But I do wonder how many other unauthorized ebooks are available on Amazon, from mid-list authors, or deceased authors whose publishers don't keep track of these things. Amazon needs to assign someone to check every single upload, before some publisher slaps them with a huge lawsuit for selling their books w/o permission.
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Old 07-04-2009, 01:41 PM   #84
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Quote:
Originally Posted by Elfwreck View Post
Amazon is responsible for what's sold on their servers, using their software, in their store. Saying "oh, there's too many to monitor" is no excuse. If they don't have the staff to monitor book uploads, they need to allow less books until they do have enough staff.
I'm not so sure about that. Are eBay responsible for the things that people sell on their site? Realistically, I suspect that all Amazon can do is make people agree to a declaration that they have a legal right to sell the books they upload, and to promptly react to reports of copyright violations - and that's exactly what they do.
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Old 07-04-2009, 02:18 PM   #85
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I'm not so sure about that. Are eBay responsible for the things that people sell on their site? Realistically, I suspect that all Amazon can do is make people agree to a declaration that they have a legal right to sell the books they upload, and to promptly react to reports of copyright violations - and that's exactly what they do.
There are 2 issues here, I think:

1. Is Amazon (or eBay or any other online eTailer) responsible for ensuring that what is sold on their site is legal?

2. Once Amazon (or eBay....) has discovered what something that is being sold is illegal, what can/should they do about it. Who (the eTailer or the customer) should "lose out" due to the mistake...

I think we all agree that the eTailer is responsible for ensuring that what is sold on their website is legal. Mistakes happen -- we all know that.

However, how the company reacts when they have discovered the problem is the issue.

I think the "eBay" model is appropriate -- if they discover an issue while the auction is still up, it is reasonable to remove the auction. However, if the auction had already been completed and the transaction settled, (I may be mistaken here...) eBay basically shrugs its shoulders and says "nothing we can do now..."

Amazon, on the other hand, rather than accept the responsibility for their own mistakes, intrudes into the customer's device to try to mitigate their own liability. It may be true that Amazon would have been exposed from a liability standpoint but they accept that risk when they open up their website for any numnut to sell anything they want to without adequate safeguards. It isn't up to the customer to save Amazon from themselves.

In this case, I think the appropriate resolution would have been to take down the the book (which they did), but honor the sales that had already taken place in good faith and accept the responsibility (read liability) for the copies that were already sold.

I think the irony here is this is over Ayn Rand books -- WWARD (What Would Ayn Rand Do?) It's been awhile since I read her books but I certainly don't think she would have taken the approach that Amazon took.
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Old 07-05-2009, 12:18 AM   #86
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Kindle books are licensed.
Speaking as a lawyer, I can tell you that Kindle books might be "licensed," or might be "sold," but Amazon's saying it's a "license" has very little influence on what a court would decide about it. Personally, I think the courts would decide that they are "sold."

The problem is, I don't see how the question will be decided unless some K2 owners get together in a class action of some kind to force Amazon into court. I suspect that Amazon will be very careful not to do something that will expose it in that fashion.

As a practical matter, Amazon has K2 owners over a barrel. If you don't want to be over that barrel, buy something else.
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Old 07-05-2009, 12:56 AM   #87
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I'm not so sure about that. Are eBay responsible for the things that people sell on their site? Realistically, I suspect that all Amazon can do is make people agree to a declaration that they have a legal right to sell the books they upload, and to promptly react to reports of copyright violations - and that's exactly what they do.
What you call "realistic" I would label a "rational business decision."

Unfortunately for Amazon, in a copyright lawsuit, that rational decision might be seen as a "willful" decision to risk violating any copyright where the uploader lies about owning the copyright.

I think that Amazon has done the math, and figures that it costs less in the long run to take a hit now & then when a copyright violation occurs, as compared to doing a complete checkup on each upload.
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Old 07-05-2009, 02:46 AM   #88
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I think there are some cheap checks they could automate that would flag most likely offenders. If they even flagged anything that had a hit on author or title in their catalog, that would likely save them from the worst claims.

I'm so glad to have a lawyer on this thread! I hope you don't mind if I ask a quick question. A few pages ago a couple of us suggested the idea that maybe if Amazon didn't use all remedies available to them to mitigate the impact of the unauthorized book, they could be more vulnerable. Is that true? I had figured that as a likely reason why they pulled the books from customers' devices and not just their libraries. I think it would still be wise for them to automate a few checks and put an explicit line in the ToS that lays out under which conditions they will pull a book, though.
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Old 07-05-2009, 03:28 AM   #89
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I don't think people need to be concerned about Amazon analyzing the material on their Kindles. From what I understand (I'm not an expert on the Kindle by any means), the Kindle is initiating the communication with Amazon via Whispernet. Your Kindle requests synchronization with Amazon's servers, and receives updated information about books that are available to you (most of the time that would be updated when you buy/add a book). In this case your Kindle finds that a book is flagged for deletion, so it deletes the flagged book.

It's not like Amazon is doing a search of your Kindle contents looking for Atlas Shrugged. You (represented by your Kindle) are the one initiating the synch.

A distinction that may or may not make a difference to people's feelings about it, but it is a distinction from what some people seem to be concerned about.
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Old 07-05-2009, 05:14 AM   #90
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However, how the company reacts when they have discovered the problem is the issue.

I think the "eBay" model is appropriate -- if they discover an issue while the auction is still up, it is reasonable to remove the auction. However, if the auction had already been completed and the transaction settled, (I may be mistaken here...) eBay basically shrugs its shoulders and says "nothing we can do now..."

Amazon, on the other hand, rather than accept the responsibility for their own mistakes, intrudes into the customer's device to try to mitigate their own liability. It may be true that Amazon would have been exposed from a liability standpoint but they accept that risk when they open up their website for any numnut to sell anything they want to without adequate safeguards. It isn't up to the customer to save Amazon from themselves.
I respectfully disagree. I think that Amazon did entirely the correct thing in doing everything in their ability to remove the infringing material from customer devices, and refunding customers' money. Doing that is the very ideal of "accepting responsibility for their own mistakes", although it's difficult to see what "mistake" Amazon made. If someone uploaded these books and deliberately lied about their right to do so, the blame falls squarely on that dishonest person, not on Amazon, it seems to me.
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