Is anyone still missing ebooks from Fictionwise?

[AnemicOak]

Originally Posted by Nate the great

It's the principle of the matter, folks. Fictionwise sold me an ebook and then took it back. If they can't replace it then they must refund my money.

But they also don't guarantee your book will be available forever...

I thought Fictionwise guarantees all eBooks will remain on my bookshelf forever?

Fictionwise strives to maintain backup copies of your purchases available for re-download indefinitely, but our terms of service do not guarantee that they will be available for re-download forever. For all formats other than Mobipocket, a re-download is not necessary to transfer the file to a new device. Forever is a long time. We have control of our MultiFormat files and we have control of the Secure eReader format, so that gives us the ability to ensure we will continue to be able to deliver those formats to you. However, as noted above, other formats are delivered through third party aggregators. We do not have legal control of those third party servers. If those third party servers "go dark" for one reason or another, we have no way to continue delivering those files.

[Nate the great]

Originally Posted by AnemicOak

But they also don't guarantee your book will be available forever...

So what? That statement does not release Fictionwise from the obligation they created. They are the ones who attached DRM to the sale, not me.

[AnemicOak]

Originally Posted by Nate the great

So what? That statement does not release Fictionwise from the obligation they created. They are the ones who attached DRM to the sale, not me.

What obligation exactly?

[Critteranne]

Originally Posted by Nate the great

This past week I've been rebuilding my ebook library (so I can switch to Epub). I noticed while downloading from Fictionwise that I'm still missing 9 ebooks. Is anyone else in this situation?

I ended up losing a couple of LIT books (although I'd already made backups, etc.) -- and gaining lots of eReader copies of those books. In fact, I ended up aheadish because I regained an eReader book I'd lost some years ago. They used to carry the Seabiscuit book in eReader format, and then that distributor pulled out or whatever, so I was no longer able to download it. And of course, I couldn't find the old credit card number I'd used to open it. When they acquired eReader, I ended up with a working copy of the Seabiscuit book again.

[calvin-c]

Originally Posted by AnemicOak

But they also don't guarantee your book will be available forever...

I'm curious how long what you quoted has been in their T&C? No way I know of to tell, except by asking them. (and if they say "Forever" then the question is, do you believe them?)

One of the most pernicious aspects of online contracts is agreeing to T&C that are also online-and therefore subject to subsequent modification. I've never bothered to save FW's T&C, but I have done that with a few other places I've purchased from. And at least once doing so got my money refunded when they changed their T&C. But if I hadn't been able to prove that the current T&C wasn't what I'd agreed to in the contract, I'd have been OOL. (It was something like 15 years ago. AOL, I think, when I first went online. I'd paid for a year's service in advance, with free use of an 800 number. Then they decided to charge something like 6 cents/minute surcharge for the 800 number.)

[AnemicOak]

Originally Posted by calvin-c

I'm curious how long what you quoted has been in their T&C? No way I know of to tell, except by asking them. (and if they say "Forever" then the question is, do you believe them?)

One of the most pernicious aspects of online contracts is agreeing to T&C that are also online-and therefore subject to subsequent modification. I've never bothered to save FW's T&C, but I have done that with a few other places I've purchased from. And at least once doing so got my money refunded when they changed their T&C. But if I hadn't been able to prove that the current T&C wasn't what I'd agreed to in the contract, I'd have been OOL. (It was something like 15 years ago. AOL, I think, when I first went online. I'd paid for a year's service in advance, with free use of an 800 number. Then they decided to charge something like 6 cents/minute surcharge for the 800 number.)

I know it was there (or something similar) when I started heavily buying books from them in October of '07. Beyond that I can't say, but I doubt any seller is going to guarantee you'll always be able to re-download your purchases.

What I quoted wasn't from their Terms of Use, it was from the eReader replacement FAQ. Here's what the actual Terms say...

9. Ebooks. After purchasing any downloadable eBook or product from Fictionwise.com, it is the Fictionwise Member's responsibility to download the eBook or product within 1 hour of purchase. If you believe an error has been made in the purchase, please do not download the eBook (you must contact us explaining the error at support@fictionwise.com). Once you download the eBook, then it is impossible for us to refund you for it. Please note: Because of the constantly evolving nature of the eBook industry and eBook formats, we do not guarantee that eBooks you purchase from Fictionwise will always be available in the formats that we "currently" support. That is why it is important that you download the eBook in the format of your choice immediately after purchasing.

Fictionwise, however, will make efforts to keep the product listed and available for download in the Fictionwise member's "Bookshelf" for three months and longer when possible -- but this is not guaranteed.

I checked an archived version from Aug 17th, 2000 and at that time it read...

10. Ebooks. After purchasing any downloadable eBook or product from Fictionwise.com, it is the Fictionwise Member's responsibility to download the eBook or product within 24 hours of purchase. Fictionwise, however, will make efforts to keep the product listed and available for download in the Fictionwise member's "Bookshelf" for three months and longer when possible.

[Nate the great]

Originally Posted by AnemicOak

I know it was there (or something similar) when I started heavily buying books from them in October of '07. Beyond that I can't say, but I doubt any seller is going to guarantee you'll always be able to re-download your purchases.

What I quoted wasn't from their Terms of Use, it was from the eReader replacement FAQ. Here's what the actual Terms say...


I checked an archived version from Aug 17th, 2000 and at that time it read...

First things first. Thank you for asking questions. This prodded me into checking Virginia state law on sales, contracts, and warranties.

There are a couple problems with citing the Terms of Use. First, it very likely is a contract of adhesion and will likely be struck down. Second, there is a significant difference between what Fictionwise _wrote_ and what Fictionwise _did_. They may have said the ebooks would only be available for a limited time, but what they did was make them available effectively forever. The ebooks purchased from Fictionwise are available for download from time of purchase until the present. Is it unreasonable to think that the ebooks will be available for download indefinitely? Given the restrictions of DRM and the observed actions of Fictionwise, I think not.

[calvin-c]

Contracts of adhesion are not necessarily unenforceable-mostly they depend on two points, a 'take it or leave it' approach (which Terms of Use certainly have) and terms that a reasonable person would probably not agree to had they actually read the contract. Note that this refers to *terms* rather than *consequences*. IMO reasonable people would agree to the terms of Fictionwise, not expecting the circumstances to actually happen. (Note that I said 'reasonable' people rather than 'suspicious' people-I happen to be suspicious so I probably wouldn't have agreed had I not known I could back up the files & strip the DRM if I needed to.)

IMO you'd have a better chance based on the fact that FW doesn't make you agree to the terms with every purchase. Sure, you might read them when you set up your account, but do you think a 'reasonable' person would remember those terms two years later? And until something like this happens you'd have no reason to go back & review them either. So that *might* be a defense but please note, IANAL.