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Old 07-05-2009, 09:17 AM   #91
purl4peace
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Originally Posted by HarryT View Post
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.
Seems like we (the folks on this thread) are going around and around in a circle.

When you say "Amazon did entirely the correct thing in doing everything in their ability..." There is a difference, I think, between doing what may be "perceived" as the "correct" thing and doing the "legal" thing.

There is a distinct difference between digital "property" and "physical" property and had the "mistake" (for lack of better word) been that had been a physical item was sold/distributed illegally, it might be "correct" to try to retrieve all of the illegally distributed physical units. However, it would not be legal for them to come to your house and demand repossession.

However, because technology and "digital property" is so much easier to "control" remotely, I suspect that it really doesn't matter what you or I or anyone else thinks because as a previous poster pointed out -- until Kindle (or computer owners in general) force the issue in the form of a class action lawsuit, the technology companies will continue to do whatever they please (I'm generalizing here because Microsoft will do basically the same sort of thing via their "Genuine Microsoft Advantage" spyware that you have to consent to in order to maintain any Windows platform -- so Amazon is, by no means, the only... or even WORST offender!)

But back to the question of WWARD: from the all-knowing never-errant Wikipedia which is quoting the Internet Encyclopedia of Philosophy:

Quote:
Libertarians are committed to the belief that individuals, and not states or groups of any other kind, are both ontologically and normatively primary; that individuals have rights against certain kinds of forcible interference on the part of others; that liberty, understood as non-interference, is the only thing that can be legitimately demanded of others as a matter of legal or political right; that robust property rights and the economic liberty that follows from their consistent recognition are of central importance in respecting individual liberty; that social order is not at odds with but develops out of individual liberty; that the only proper use of coercion is defensive or to rectify an error;
So based on the purely libertarian view, Amazon was within their rights since they were trying rectify an error... Can't say I agree, maybe why I'm not a great libertarian.
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Old 07-05-2009, 11:36 AM   #92
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Just to clarify, Ayn Rand was not a libertarian and did not like being associated with the political philosophy. There are a lot of similarities, of course, but there are also a lot of strands of libertarian thought, most of which wasn't agreeable to Rand. If Rand didn't agree with something, she usually considered it beneath her.

Concerning contracts, different libertarians believe different things. Some may think that the writing in the terms of services are the only thing that matter but another strand of libertarian thought says it's the intent that matters most. Stephan Kinsella wrote an interesting article on this titled "The Libertarian View on Fine Print, Shinkwrap, Clickwrap."

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Many libertarians, often with only a crude understanding of the nature of contracts, just assume, Rand-like, some kind of mystical "power" to "bind" oneself by "a contract". They tend also to equate contracts with a written agreement. They thus tend to think that "if it's written in ink, it's binding, no matter what". To my mind, this is too formalistic. A writing is neither necessary nor sufficient to form a contract. Most contracts are not written. They may be oral. They do not even need to be verbal--I hand you a dollar, pointing to the newspaper; you take my dollar and give me the paper. A sale happens, nonverbally (no oral or written communication). And "what is written" is not necessarily dispositive. To my mind, a written agreement is only evidence of what the parties actually agreed to. But it is rebuttable. The written agreement may be very sparse: in which case in the case of disputes, there is no choice but to resort to "gap-fillers," default rules, and the like. Or the agreement may contain ambiguities or even inconsistencies--this may require similar construction methods, or even invalidation of the agreement.

[...]

So one problem with click-wrap agreements, for example, is that there is (arguably) often no "meeting of the minds" on the fine print--and the vendor is fully aware of this. If the customers routinely just click the "I have read and agree to these terms" box but never do read it, and the vendor knows this, then it's a sort of fiction to assume both sides have actually agreed on these terms. For example supposed buried in fine print for a contract for sale of a $20 software program is the provision, "Buyer agrees to give 50% of his income to Vendor for life." Is this enforceable? Of course not. Why not? Because there was no agreement to this. So the "hidden" terms have to be in some sense reasonable, at the least.
I know most people here don't care much about libertarian philosophy but I thought this was relevant. It's almost certainly true that Amazon knows most people don't read its terms and services associated with the Kindle. Can people agree to something if they don't know the terms?

Last edited by SpiderMatt; 07-05-2009 at 01:31 PM.
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Old 07-05-2009, 11:39 AM   #93
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They deleted from the user area so this is NOT just a synchronization issue.

First off, it only takes a usb cable to see that when downloaded from the archives the ebooks exist as actual physical files in the user area. You do not read books on Amazon's servers. You download and read the downloaded files on your device's user area. It is one thing for Amazon to say "Well, you cannot download this book anymore and we are refunding and asking you to delete downloaded copies" and another to actually delete from their servers and ALSO delete physical files from your user area.

How about if I go onto Apple's servers and download a game.... I like the game and go to play it again and get email and a note from Apple that the game was in violation of copyright and I should delete any copies. Sure enough the game is no longer available for download. So, I delete my own copy because if I do not then I would be violating copyright -- not Apple at that point which has already removed the software from the computer they own.

What Amazon is saying here is that they feel they own our Kindles, not us -- if you consider ownership to be access. Suppose I had downloaded the Ayn Rand book and I had backed it up to my computer? I actually often do that because even if you can't read the books due to DRM at least that backs them up should Jeff Bezos ever go out of business in this economy. I actually always recommend such backups to people. So, suppose that Ayn Rand book was still in my library folder on my Mac. Would Amazon have the right to go onto my Mac and delete the file? No, because it is on my private computer. Would Apple have the right if Amazon requested them to do that? Of course not. Because you have licensed software from a vendor that does not give the vendor the right to access your hardware even if they are the original manufacturer of that hardware.

The more I see how Amazon is handling everything from DRM to fonts to this the more uncomfortable I get. They really do not seem to be putting their customers and the privacy of their customers and the rights of their customers first.

I think that there are some very serious issues at stake here.
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Old 07-05-2009, 12:54 PM   #94
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I think that there are some very serious issues at stake here.
Yeah, what he said!
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Old 07-05-2009, 02:11 PM   #95
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Ladies, Fish, and Gentlemen, this is one of the prices you pay for owning a Swin---excuse me, Kindle. In order to have Whispernet, you ceded the right to have Amazon look into your machine, play games with it, and (not germane to this particular problem) genericly track you around as you travel. You ceded this for the convenience of being able to download anywhere at the touch of a button.

You also signed on for a closed system, extremely limited choices in format used, and difficulty in transferring your own files into the system.

TANSTAAFL.

Now I'm not just bashing Amazon, any WiFi on all the time system is subject to these problems. I pointed this out when the Kindle first came out, and most people didn't care, they thought is was so wonderful to have anywhere download. Now that it starting biting you, don't complain. You were told the puppy has teeth....

RSE
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Old 07-05-2009, 02:33 PM   #96
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<<Ladies, Fish, and Gentlemen, this is one of the prices you pay for owning a Swin---excuse me, Kindle. In order to have Whispernet, you ceded the right to have Amazon look into your machine, play games with it, and (not germane to this particular problem) genericly track you around as you travel. You ceded this for the convenience of being able to download anywhere at the touch of a button.>>

Um. I think it has been well pointed out by more lawyerly types then myself in this thread that a license agreement may or may not be valid until it is tested in court. I am of the personal opinion that Amazon's Draconian tos would not stand up in court and that they are begging for a class action lawsuit. I just hope some lawyer gets interested enough to pursue such.
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Old 07-05-2009, 03:05 PM   #97
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I'd also like to point out, yet again, that Whispernet is not essential to the Kindle. It's a nice feature and works well most of the time. Cases like this with the Ayn Rand books are rare so you can generally be assured that your content is safe. However, I live overseas and don't usually have access to Whispernet and I like both my Kindle 1 and Kindle 2 just fine. I still like it more than the Sony Reader I had. So if you don't like Whispernet, turn it off! Amazon has still made a great reader and it gives you access to Amazon's e-book store, which is consistently one of the most economical and comprehensive.
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Old 07-05-2009, 04:24 PM   #98
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Originally Posted by HarryT View Post
I'm not so sure about that. Are eBay responsible for the things that people sell on their site?
EBay doesn't sell things; it acts as a broker. When you purchase an ebook from Amazon, the money goes to Amazon, and they send a portion of it along to the content provider. EBay isn't a distributor nor a storefront; they're an auctionhouse. EBay *doesn't take payments* from purchasers.... they pay the auction-holder, who owes a percentage to eBay. That puts more of the burden of legal sale on the seller.

Amazon is a distributor; eBay is a broker. They have different legal statuses. EBay connects buyers to sellers; Amazon works to keep them separate... and thus is more liable for the contents sold, because they insist on being the filter between provider and purchaser.
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Old 07-05-2009, 06:04 PM   #99
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Quote:
Originally Posted by Neil
They deleted from the user area so this is NOT just a synchronization issue....
No, it's pretty much a sync thing. Even if you don't accept that, it's pretty much the same thing that happens with many digital content retailers and providers, including Apple, Sony, Microsoft, Blizzard, Adobe, Valve, EA, Linden Labs, and just about every company that publishes shareware. Few of them literally delete files, but they disable access or void virtual items -- which amounts to the same thing.

Again, when you're buying a Kindle you are essentially granting them access to your device, every time you connect to Whispernet. They sync your notes, sync your last page read, sync your contents and can add and remove features at will. And if you purchase anything online or with a credit card with any expectation of privacy, you're fooling yourself. It's all trackable, no matter who the vendor is.


Quote:
Originally Posted by Ralph Sir Edward
In order to have Whispernet, you ceded the right to have Amazon look into your machine, play games with it, and (not germane to this particular problem) genericly track you around as you travel. You ceded this for the convenience of being able to download anywhere at the touch of a button.
Exactly. Clearly, not everyone regards this as a "swindle."

And there is always the possibility, however remote, that publishers will eventually accept a DRM-free option. It may seem extremely unlikely at the moment, but so did the idea of selling DRM-free audio files via the iTunes Store in 2003.

I can fully understand how some people dislike this setup, but I for one am OK with the trade-off, and view it as extremely unlikely to "bite" me. I might add that if they start editing Kindles based on content rather than copyright issues, then deletion of e-books is likely to be the least of our problems.

IMO the main thing is that they need to be more explicit about this in the TOS.
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Old 07-06-2009, 04:42 AM   #100
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Originally Posted by Ralph Sir Edward View Post
Ladies, Fish, and Gentlemen, this is one of the prices you pay for owning a Swin---excuse me, Kindle. In order to have Whispernet, you ceded the right to have Amazon look into your machine, play games with it, and (not germane to this particular problem) genericly track you around as you travel. You ceded this for the convenience of being able to download anywhere at the touch of a button.
I wonder... The original purchaser probably had to agree some terms and conditions, but it's possible to sell the kindle, and the new owner may have not agreed or signed or checked anything. Could there be a case here?
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Old 07-06-2009, 10:21 AM   #101
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I think Amazon did the right thing by removing the books from their site and refunding customers money. The only real question is -- are they doing the right thing in removing the books from customers Kindles as they connect to the Whispernet?

I believe that this is the right thing to do. Amazon refunded you the money for the book so you should give it back. If Amazon sees that you still have the book then they should be allowed to remove the book, especially if you have already agreed to allow them to do just this thing (the click-contract).

Don't like the click-contract? If that's the case then I'm sympathetic, and I wouldn't have a problem with people arguing that they should be able to return their Kindle back to Amazon for a refund. However, that's not what most people are arguing for here.
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Old 07-06-2009, 10:46 PM   #102
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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?
This is tougher to answer than it seems.

Technically speaking, "mitigation of damages" refers to the duty of the person claiming injury to do what is reasonable to prevent the injury to be worse than it might otherwise be.

So, for example, if you have a contract with me to sell me bananas at a dollar a bunch, and you bring the bananas around but I reject them for whatever reason, even a totally bogus one, you have a duty to try to sell the bananas to someone else. You can't just let them rot & expect a court to force me to pay the buck, unless no one else will buy them at any price. If someone else would pay you 90 cents a bunch, all you can get out of me is the extra dime, even if you don't actually sell them.

So what Amazon is doing here is not technically "mitigation." What they might be doing is trying to convince the copyright holder not to sue by restoring the situation to what it should have been in the first place - namely, that the books should not have been sold at all. It's part of an attempt to settle the matter out of court.

If things were to get to the point of a lawsuit, I'm not sure that deleting the books would have much of an impact.

The law deals with infringement, and the infringement occurred. Deleting the books doesn't change that. Amazon could be trying to get in a posture such that if it is sued, the "statutory damages" under section 504(c) of the Copyright Act will be kept down. It seems pretty probable that the copyright owner's actual damages would be less than the statutory ones, and the copyright owner gets to elect which kind it wants to try for. The court has some discretion about how much statutory damages will be, and Amazon would want to be able to argue that the whole thing was just an unfortunate misunderstanding, so they shouldn't pay more than the minimum. Or they could be trying to avoid the court issuing some kind of injunction about their business practices in accepting uploaded books in the first place, by demonstrating that one is not needed because they can quickly recover any books "inadvertently" sold.

But it is not altogether clear to me that Amazon actually had the legal right to delete the ebooks. It might be hard to go into court and argue that the statutory damages should be kept to the minimum because they unilaterally deleted the books, perhaps without the legal right to do so. The copyright owner could argue that Amazon deserves to be hit hard, because they are creeps that both infringe on copyright and screw their customers when they get caught.

Ultimately, though, I don't think that Amazon is trying to limit its vulnerability. I think it's trying to avoid a lawsuit in the first place by trying to conciliate the copyright owner. Step one, delete the books. Step two, offer a cash settlement. Everybody's happy. Except, of course, the guys who, in good faith, bought the ebooks.

PS. Don't assume I'm the only lawyer on this thread. I might just be the only one who will admit it. There are a couple of posters I could mention <cough> lfrk <cough> who exhibit a disturbing ability to engage in legal reasoning.

Last edited by Harmon; 07-06-2009 at 10:53 PM. Reason: PS
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Old 07-06-2009, 11:46 PM   #103
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Amazon behaved exactly as I would expect they would. and I'd have no problem if it happened to me. I'd be somewhat annoyed maybe at having bought an illegal book, but I wouldn't fault Amazon for the way they handled things.
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Old 07-07-2009, 02:15 AM   #104
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I don't think that all this hoopla is about the fact that amazon did remove this book in this situation. I think the larger issue is that they can wirelessly and without the owners knowledge or approval remove data from your Kindle. And when or will amazon use this ability to remove data from your kindle without these legal reasons.
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Old 07-07-2009, 02:44 AM   #105
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Quote:
Originally Posted by Harmon View Post
So what Amazon is doing here is not technically "mitigation." What they might be doing is trying to convince the copyright holder not to sue by restoring the situation to what it should have been in the first place - namely, that the books should not have been sold at all. It's part of an attempt to settle the matter out of court.
I think they're trying to claim "safe harbor" status, and compliance with the DMCA by removing questioned content after notification.

This works well for ISPs and web hosts; I have my doubts about it applying the same way to businesses that are selling the content itself. I have more doubts about the legality of removing content from their customers, but that's separate from the copyright violation. (Hm. What is the breach of law, if a store demands return of items & refunds the purchase price, against the will of the customer? I'd think that was a form of theft, even if it was "being paid for"--certainly, stores are not allowed to demand the return of items mistakenly sold on sale.)

I can understand removing the item from the store as a way to reduce their liability. I'm not seeing how stripping the purchases from some customers (those who had whispernet active & hadn't already backed up the files on their computers) further reduces liability, although perhaps it does make it less likely that the copyright owner will sue. Especially if Amazon falsely tells them that they removed "all" copies of the ebooks from people's Kindles.
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