Kindle Deleted Ayn Rand Content

[Shaggy]

Originally Posted by Elfwreck

Except the receiver is "making a copy" by downloading? And distributing to herself?

Only indirectly. There is no way a receiver can "make a copy". Downloaders never have access to the original. I can't make a copy of a file that sits on somebody else's computer. What happens is that my computer asks the uploader's computer for a copy, the uploader's computer then creates a copy and sends it to me. My computer never sees or "touches" the original file on their hard drive. I do not directly infringe on the distribution right, but I may be indirectly responsible for the infringement because I asked them for it.

Whether or not I'm indirectly responsible basically comes down to whether or not I was aware that when I asked for the file I was asking the uploader to commit copyright infringement on my behalf.

In the case of the Kindle books, I don't think you can argue that the customer's were inducing Amazon to commit the infringement. They likely had no idea that the eBook they purchased was unauthorized, so the responsibility was solely Amazon's (and the original uploader to Amazon).

[Shaggy]

Originally Posted by Harmon

But the downloaded ebook copy doesn't exist until you download it.

The eBook copy doesn't exist until the downloader requests that the uploader make it. It's like a pBook seller having a shelf with books on it behind the counter. When you ask for a copy of the book the seller takes it off the shelf, photocopies it, and then hands you the copy. The buyer never has physical access to the original book.

If the seller is not an authorized distributor then it is obvious they are committing infringement. But whether or not the buyer is guilty of indirect infringement depends on whether they were aware that the seller was committing infringement on their behalf when they asked for the book. Did the buyer know the book was copyrighted? Did the buyer know the seller was not an authorized distributor? ...etc.

If you're saying that the downloader of an eBook is the one that creates the copy (which is impossible if you know how computer's work), then they are the one distributing. That would mean the uploader is not guilty of copyright infringement, only the downloader is. The uploader is engaged in "making available", but not the actual distribution. That's not how the law is written, and that's not how the current RIAA lawsuits are being done. The uploader is the one who is responsible for the direct copyright infringement.

[Shaggy]

Originally Posted by Harmon

But consider Chapter 5, section 503. That section involves "remedies," not violations. But it authorizes a court to order the impounding of infringing copies, and to order the ultimate disposition of the copies, including destruction. It doesn't say anything about who has possession of the copies.

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.

You're right though, it's not very specific.

[Shaggy]

Originally Posted by Harmon

You could be right.

As I pointed out in one of the posts just above, Title 17, Chaper 5, section 503 gives the power to a court to impound unauthorized copies of a copyrighted item, and destroy or otherwise dispose of them. And it doesn't limit that authority to unsold copies.

It gives the power to a court, not to Amazon.

This very strongly suggests that the buyer of an unauthorized ebook does not have any property rights in the ebook.

Assuming that Chapter 5, section 503 includes property sold to customers, and is not just talking impounding the unauthorized distributors property. I don't think it's clear how that would be interpreted.

[Shaggy]

Originally Posted by Elfwreck

I think that last statement is the key point here. There will be no lawsuit because there's no money in it.

I think what likely happened is that Amazon knew they were exceeding their authority by deleting customer's books. They did it because it would decrease the chances that the owner would sue, and are probably assuming that the customers won't. It was a risk trade off.

[Phebe]

Originally Posted by Kali Yuga

FYI some of Rand's earlier works are apparently in the public domain, otherwise you will just have to wait for the rest either to be made commercially available or enter the public domain -- or pirate it. I'm pretty sure Rand would rip you a new one for copyright violations, if that matters to you at all.

I doubt that ---- Rand would make it happen, that's all. The idea that there is a market for her books that isn't being satisfied at all --- reminds me of the Taggerts' badly run railway. The thing to do, when it's time to railroad, is railroad. (Heinlein, probably after reading "Atlas Shrugged.")

Oh, well, anyway, who is John Galt ?

[Phebe]

Originally Posted by Kali Yuga

I'm well aware of what the expression means. ["Information wants to be free."] My point is that, while it's a pithy sound bite, the concept is not necessarily correct. The desire of certain people to access digital content at zero cost does not invalidate copyright law.

No, wait ----- the concept is surely correct: all kinds of information spreads wildly: memes, rumors, books, videos, news. Information wants to be free, all right, if it's information anyone is interested in. Information is like steam escaping from a teakettle; it's hard to stop it.

No, this doesn't invalidate copyright law, but it does make it irrelevant. It took me a little over an hour to acquire a rather nice OCR-ed copy of "Atlas Shrugged" quite free for my laptop, and adjust the type size to my liking. I am persuaded from reading these posts that most of you here could have done this in half the time or less! If you wanted to.

So that's going to be an issue for Amazon, Sony, and copyright holders. This is big, kiddoes, e-books are huge. Gutenberg just moved sideways to a new platform, and we are here.

Twenty-seven years ago I typed in a phrase on a keyboard on this little Kaypro box thingie, and hit a typo, and backspaced it out --- and dropped my hands and gasped. I knew the world had changed forever, a lot. I'm having the same feeling again; the world just made a big lurch forward in content availability, and there will be a lot of people rolled over if they don't watch out.

[Phebe]

Originally Posted by Shaggy

I think what likely happened is that Amazon knew they were exceeding their authority by deleting customer's books. They did it because it would decrease the chances that the owner would sue, and are probably assuming that the customers won't. It was a risk trade off.

My guess is that the Ayn Rand Institute is playing hardball for more money, and no wonder --- apparently since the recession in 2000 "Atlas Shrugged" has been one of the best sellers on Amazon, who knew? And that has done nothing but increase since the financial crunch started August 2006. It's being promoted by fans in the business media, such as the famous Wall Street Journal op-ed by Stephen Moore, which is why I went after it. Also the Cato Institute and all the new Libertarians around since the recent mortal illness of the Republican Party is helping promote this unusual book.

But because the book is so large that it's unwieldy and hard to print and bind legibly, it's a valuable property for Amazon's Kindle --- and the ARI. It's a case of it being substantially MORE valuable in eBook form than paperback, so ARI is probably trying to price it high. Just my guess.

[wodin]

Originally Posted by Phebe

No, wait ----- the concept is surely correct: all kinds of information spreads wildly: memes, rumors, books, videos, news. Information wants to be free, all right, if it's information anyone is interested in. Information is like steam escaping from a teakettle; it's hard to stop it.

Isn't that the Forth Law of Thermodynamics? No wait, it’s actually a derivative of the Second Law of Thermodynamics which states that the entropy of the universe always increases. Meaning heat and information tend to equalize over the long run.

[Harmon]

Originally Posted by Shaggy

If you're saying that the downloader of an eBook is the one that creates the copy (which is impossible if you know how computer's work), then they are the one distributing. That would mean the uploader is not guilty of copyright infringement, only the downloader is. The uploader is engaged in "making available", but not the actual distribution. That's not how the law is written, and that's not how the current RIAA lawsuits are being done. The uploader is the one who is responsible for the direct copyright infringement.

I have to wonder how deeply a court would look into the "mechanics" of the process. It strikes me that the uploader is just the better target, and will necessarily be involved with a greater exposure to statuory damages, because more copies will be involved.

[Shaggy]

Originally Posted by Harmon

I have to wonder how deeply a court would look into the "mechanics" of the process. It strikes me that the uploader is just the better target, and will necessarily be involved with a greater exposure to statuory damages, because more copies will be involved.

The law doesn't really care (and shouldn't) whether the product is physical or digital. The technical details of how a computer works probably don't matter. With a physical bootlegger, it's obvious that the bootlegger is the one committing unauthorized copying/distribution. Nobody would say that the person buying an unauthorized DVD from a flea market is the one who "makes" the DVD. They go after uploaders for the same reason.

There are basically two reasons that people get confused about who commits infringement in the digital world.

(1) The mechanics are more convoluted.
(2) The media industry is actively trying to create the impression that downloading is illegal. It's difficult to prosecute the ones who are really violating the law (uploaders), so they try to intimidate everyone else into not downloading. They want you to think you will get into trouble for just downloading, regardless of whether or not you actually will.

[Harmon]

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.

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.

[Harmon]

Originally Posted by Phebe

But because the book is so large that it's unwieldy and hard to print and bind legibly, it's a valuable property for Amazon's Kindle --- and the ARI. It's a case of it being substantially MORE valuable in eBook form than paperback, so ARI is probably trying to price it high. Just my guess.

Hmm. Interesting thought. One of my sons brought the comic "Bone" to my attention a while back. It's a series of (entertaining and well drawn) comic books which have been gathered into a single Volume of Biblical Proportions, hereinafter "VBP." The VBP sells for around 40 bucks, discounted anywhere from 20 to 40 percent, Amazon to Borders coupons.

But recently, it has appeared in a series (12 so far) of iphone apps, at 99 cents each. I figure that there are 55, plus or minus, potential apps, so the gross from these sales could approach 50 bucks for the same material in the VBP.

Now let me tell you that Bone translates beautifully to the iPhone, and is much more accessible in that format than in print. So I think the extra cost is supported - and it is also made more palatable by being dribbled out across many small purchases. So serialization, in this case, adds value, and reduction to electronic format also adds value.

Phebe, I think you've identified something here that is worthy of bearing your moniker: The "Phebook Factor," which comes into play when an ebook is more valuable than the pbook, for reasons having to do with greater ease of use or accessibility in electronic form.

[Shaggy]

Originally Posted by Harmon

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.

But copyright infringement and stolen property are two completely different things. In a copyright case, there is no stolen property. The ownership of the item is not what is in question. If a seller photocopies a physical book, copyright law does not say the Publishing company whose rights were infringed owns the photocopies. The law is about whether or not the distributor was authorized by the copyright holder to make/distribute copies, not ownership of the copies themselves. It's closer to being a contract/licensing dispute between the copyright holder and the distributor, not ownership of "stolen" property.

[Elfwreck]

Originally Posted by Harmon

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.

Physical property analogies to theft don't work. This is an IP situation.

I know of several books that were pulled from publication after successful copyright infringement lawsuits... in no cases were customers required to return the books. The infringement lay entirely with the company that had produced the books without proper clearances, not the people who bought those productions.

This is the key point: there IS precedent to build from; this is hardly the first time a rights holder has complained about a book sale, and gotten the book removed from publication. I don't believe the books already sold ever had to be returned in other cases.

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 some sort of fraud, based on Bezel's claims that, once purchased, ebooks remain available for download--his reason for claiming customers don't need an SD card slot. If the books don't remain available even on the Kindle itself, obviously there is reason to have another place to store them.

I'll grant that's a stretch. (However, the lack of clear TOS about the Kindle may be actionable in itself, separate from this; the fact that they mislead customers about how it works and what right they have, could be fraudulent.)

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."

California has a constitutional right to privacy. I don't know if it extends to cases like this; I don't think it's been tested.