Quote:
Originally Posted by Shaggy
I think we're back in a grey area because it was written before "digital infringement" really existed, but 503 talks about things like molds, masters, film negatives... etc. The intent of Chapter 5, section 503 sounds like impounding property of the unauthorized distributor, not necessarily their customers.
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My argument is a bit more subtle - if the distributor's property can be impounded, it's because it's not really his property. It follows that no property interests can be transferred to the putative buyer.
It is analogous to a thief selling stolen property - the buyer can't acquire a property interest from the thief.
All of this to make the point that the buyer of an unauthorized ebook does not have a lawsuit against Amazon for deleting the book, but rather, only a lawsuit for refund of the payment for the book.
What is really bugging people is the idea that Amazon can just erase the book. But I think that the legal question is not whether Amazon had a "right" to do it, but rather, what exactly is the "wrong?"
In other words, the buyer has to first articulate the basis of his or her legal claim against Amazon. What the buyer won't be able to say is "Amazon deleted my book" because the book is not "my" book. But the buyer CAN say "Amazon took my money by selling me a book it had no right to sell." Therefore, the buyer can sue for a refund.
But I am unaware of any other claim that a buyer can make, unless there's some kind of tort (technical legal term for "claim for damages resulting from injury") involving "unauthorized access to electronic device." If there is such a tort, it is only then that we would have to address the question of whether Amazon nevertheless, under the TOS or for other reasons, has a "right" to access the K.
Perhaps Amazon has no such "right," but the lack of such a right does not necessarily mean they couldn't do it. It really depends on whether the courts are going to say "yes, you are damaged by the mere fact that someone accesses your Kindle without your permission."
Okay, let's suppose that's true. What is the measure of damage? It's not the deletion of a book in which you have no property interest. I'm not sure there's any actual damage you can point to. Even the refund claim really has nothing to do with accessing the Kindle. I think you would be entitled to a refund once it became clear that Amazon had no right to sell the book in the first place. Even if you still had the book on your Kindle!
But assuming that there is some kind of "unauthorized access" tort, you know what? By activating Whispernet, I think we might be granting Amazon that access, legally speaking.
So what would a court decide? Maybe (1) you granted Amazon access to your Kindle and (2) Amazon did not damage you by deleting a book you had no right to have.
At this point, I'm not even sure that my earlier thought that there might be a punative damages claim of some kind holds any water. On the whole, I think that Amazon will get away with this, even if someone were to bring a lawsuit.