Quote:
Originally Posted by Harmon
I think you are largely correct, but when it comes to the semi-bricking of the Kindle, I expect that Amazon is on shaky legal ground. It is one thing for them to refuse to continue to do business with a customer who has returned too many items, but it is entirely another to expand that unwillingness to the point of refusing to provide access to ebooks which the customer has already bought. In fact, I suspect that in that regard, it might be Amazon which has violated the contract.
There is a concept in law known as a "contract of adhesion" which gives courts the authority to disregard contractual agreements where one party has the bargaining position to simply impose conditions on the other, and uses that bargaining position to write an unfair contract. That's what Amazon does, and the main reason they get away with it is that nobody has the time and money to take them to court over such relatively small amounts. ...
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In re-reading the Amazon Kindle agreement, I think Amazon is probably on strong enough legal ground, they've pretty tightly limited the banned users' remedies, post termination/cancellation. Of course, it would have to be litigated, to be sure.
http://www.amazon.com/gp/help/custom...deId=200144530
See the
Disputes. section, where they bind the user to arbitration, excepting when they want to sue the user (and then in a court of their choice). Common enough approach these days, I suppose, I try not to get too caught up in the boilerplate, one sees these things on software licenses, etc., all too often. Not very customer friendly, makes you long for the old paper books 1-pager simple notice, usually saying copyrighted, don't make copy without our permission.
Now that the original Kindle user's ban is rescinded, I suppose the whole question is moot, but I wonder what an end user's rights are in terms of DRM, if they did happen to be banned (or Amazon went out of the eBook business)? There are some exemptions to DRM cracking, at least in the U.S.:
http://en.wikipedia.org/wiki/Digital..._Copyright_Act
(see the section
Anti-circumvention exemptions)
and I wonder if a banned user might be construed as falling into one of those exemptions. It was, after all, Amazon that in effect terminated the contract, so the contractual/license obligations and rights, both ways, might also be impinged, and although the Amazon agreement would seem to cover this area, in terms of limiting the user's remedies, there are aspects of the DMCA law exceptions that seem to overlap, perhaps even allow override of previous agreements, I suppose the intent being if that if a library had DRM works, and the DRM provider went out of business, they could still keep/archive/etc. the works.
I'm not a lawyer, the wording of the law is not too clear, and the case law is not obviously well enough established to clarify the interpretation of the various situations. But it would be pretty ironic, given Amazon's use of DMCA against mobileread, if the same law made it legal for a banned user to circumvent Amazon's DRM.