DRM and Purchasing?

[fjtorres]

Originally Posted by GeoffR

Then under consumer law the seller has an obligation to make that clear in their main message, not just include it in the terms and conditions.

Edit: What it all comes down to is that the terms and conditions are not allowed to contradict the main message. The main message is clearly about buying, with a big fat BUY button. But the terms and consitions contradict that when they say they are not actually selling, just licensing.

You are *buying*...
...a license.

That's why it's not renting: renting involves temporary ownership and (usually) recurring payments. Not a one time payment for an "eternal" ownership.

When you buy disk-based content (games, movie, applications) you make a one time payment to buy a license to use that product indefinitely. No limits on its use other than the terms and conditions specified in the transaction. This practice has been going on for forty years. It is understood by consumers the world over...

...except, apparently in publishing...

It's really simple: when you buy a disk-based copy of FALLOUT 4 you get a license to play the game that is tied to the physical disk. When you buy a digital download version you get a license to play the game that is tied to the user account and playable wherever the account is valid. In both cases you are buying a license that comes with a set of conditions. The first is transferable but if the disk is damaged the license becomes inaccessible whereas the second is non-transferable but can be redownloaded as many times as necessary. It is a trade-off.

The exact same situation plays out in books: if you buy a dead tree edition you get a license to read that is tied to the rotting tree pulp. It is transferable but if you lose the codex or it is damaged you do not get a replacement. If you buy the digital edition you get a license to read tied to the user account and readable wherever the account is valid. It isn't transferable but can be redownloaded as many times as necessary. It is a trade-off.

The practice is decades old.
The trade-off is well known and accepted.

The content is separate from the distribution mechanism. You buy the license to use but the content remains the property of the publisher. Until they sell it to Electronic Arts, Ubisoft, or Activision. Or they sign a life-plus-seventy deal with a traditional publisher.

Edit:

The really funny thing is the digital editions are the ones with the truly transparent terms and conditions (for those bothering to read them). The codex editions serve notice of their terms and conditions through obscure shorthand: copyright notices, "all rights reserved", notices about not copying without permission, etc. All those are reminders that all you own is the right to read the content of the codex, not the content itself.

A century ago, circa 1910, the New York publishing establishment, upset that Macy's and other stores discounted books, started printing actual license terms inside the books, trying to prevent discounting. The stores sued. The court found that trying to control pricing of transferable licenses was not allowed and the doctrine of First Sale was born.

[HarryT]

Originally Posted by pwalker8

No, they don't disagree with me. You just said that I own the book, which is what I said. I don't own a license to read the book whenever the copyright owner wants to let me, I own the book and can read it whenever and where ever I wish. I own the ebook as well.

With a paper book you own the physical material on which the book is printed. An ebook has no physical component. What precisely is it that you believe that you own?

[rkomar]

Originally Posted by HarryT

With a paper book you own the physical material on which the book is printed. An ebook has no physical component. What precisely is it that you believe that you own?

How about the ability to read it whenever I want? With a paper book, as long as I keep the physical copy in good shape, I can read it. I can keep the bits of the ebook in good shape, too, but when the license is revoked, I lose the right to read it. The latter is not the same as the former. The ability to read the book is no longer just about how long I'm willing to preserve the physical manifestation of what I bought. Of course, that's as intended, and you'll say that when you buy a license, that's what you should expect. But the point is that people are not used to buying a license for a book, and the publishers and vendors aren't trying very hard to make the distinction clear.

[Sweetpea]

Originally Posted by rkomar

How about the ability to read it whenever I want? With a paper book, as long as I keep the physical copy in good shape, I can read it. I can keep the bits of the ebook in good shape, too, but when the license is revoked, I lose the right to read it. The latter is not the same as the former. The ability to read the book is no longer just about how long I'm willing to preserve the physical manifestation of what I bought. Of course, that's as intended, and you'll say that when you buy a license, that's what you should expect. But the point is that people are not used to buying a license for a book, and the publishers and vendors aren't trying very hard to make the distinction clear.

If I hadn't been a re-reader, this would not have mattered. I've bought software plenty of times, which I can no longer use (for whatever reason). But, in most cases, that software has become outdated/updated or maybe even become impractical.

But books... If I buy a book now, that book should still be readable in 5 years. No matter the devices I use to read that book. (Presuming, I still have eyesight, etc). As shops disappear (they have and they will), nothing guarantees me that I will still be able to read that book in 5 years. The only thing I can do is trying to make it future proof myself. Which is keeping it outside that shop (to prevent disappearance because of shop closure) and removing any DRM so I can format shift if I decide to start using a different reader that doesn't the previous format of the book.

[shanghaichica]

No DRM doesn't bother me too much if it is in the kindle format because I can read it on all the devices I own, kindle voyage, 2 X iPads, Mac, iPhone. The only device I can't read it on is my nook simple touch but I rarely use that. If it were Epubs and the DRM couldn't be removed I wouldn't buy it as I don't have as many devices that I could read it on.

[HarryT]

Originally Posted by GeoffR

Then under consumer law the seller has an obligation to make that clear in their main message, not just include it in the terms and conditions.

Edit: What it all comes down to is that the terms and conditions are not allowed to contradict the main message. The main message is clearly about buying, with a big fat BUY button. But the terms and consitions contradict that when they say they are not actually selling, just licensing.

Surely, Geoff, responsibility has to be a two-way street. The retailer should make the terms of sale easily available to the consumer, and those terms should be written in plain language that's easily understandable. But there's also a responsibility on the part of the consumer to ascertain what it is that they're buying, isn't there? When the retailer offers you a link to those conditions, do you really think that the consumer has no responsibility whatsoever to take the trouble to read them?

[MikeB1972]

Originally Posted by HarryT

I'm afraid we must agree to differ. I don't see how the fact that you're buying a licence could be expressed any more clearly than with the plain English statement that "Kindle Content is licensed, not sold". You feel differently. Let's leave it at that.

Which would be fine, except DVD's are also sold as a licence as it only comes with a limited set of rights on where it can be shown.

TBH any copyrighted material is only sold as a licence, you may get a free content holder (Book, CD) or not (ebook, mp3) and the licence may be transferable or not but you have still only bought a licence. The only reason it is an issue now is that hard to copy physical items policed themselves a lot easier than digital content.

@Doonge
If you buy an item but can't use it because of DRM why is it different if it is digital or physical, how is a DVD not a similar form of built in obsolescence as a DRM'd ebook - if you don't have the hardware to use them they don't work (Well, the DVD has a nifty built-in coaster feature).

[darryl]

Arguing over which label to put on something is really a fruitless endeavour. Yes, legally the form is that of a license. But what does that mean for someone purchasing such a license? The main relevant distinction is that a license imposes conditions and may be subject to revocation for breach of at least the more important conditions. I'll use Amazon as an example here. Amazon's conditions applicable to ebooks are mainly to be found here (http://www.amazon.com/gp/help/custom...deId=201014950).

In my opinion Amazon has done a great job with expressing these terms in a reasonably comprehensible way and making them accessible. This is a welcome departure from what I think is almost the norm, where terms are much lengthier, expressed in almost impenetrable legalese and difficult to find. Unfortunately, the terms themselves are very restrictive.

So what do you get for your money? I'm going to make a few observations in no particular order.

Once you download the ebook and pay (including any taxes) you get a right to view, use, and display it, subject to limitations. This is the license. It is granted to you by the "content provider", which may or may not be Amazon. It is subject to many limitations. It is non-exclusive, which is not of any real relevance to readers. Your right to view etc. is expressly for an unlimited number of times but only through a "Reading Application" and only on the specified number of "Supported Devices" for your personal non-commercial use. "Reading Application" is defined and is limited only to software provided by Amazon. Supported devices are limited only to devices on which you are authorised to run reading software.

So far, having looked only at some of the definitions at the beginning of the terms and only at the paragraph titled "use of kindle content" which is digital content obtained through the Kindle Store your rights are severely restricted and well short of what you would normally obtain with either outright ownership or rental. In particular, you can only read the content using Amazon provided software on Amazon "supported devices". Even if you download from the Kindle Store a book in mobi format unencumbered by DRM you breach your license by reading that book in, for instance, Moon Reader or any other non-Amazon provided software. Amazon is very customer friendly but of course the future cannot be guaranteed. Although unlikely, imagine if Amazon was at some future time to limit its supplied reading apps only to its own hardware?

Other limitations are imposed later in the terms and conditions.

Limitations. Unless specifically indicated otherwise, you may not sell, rent, lease, distribute, broadcast, sublicense, or otherwise assign any rights to the Kindle Content or any portion of it to any third party, and you may not remove or modify any proprietary notices or labels on the Kindle Content. In addition, you may not attempt to bypass, modify, defeat, or otherwise circumvent any digital rights management system or other content protection or features used as part of the Service.

And if you breach the terms and conditions?

Termination. Your rights under this Agreement will automatically terminate if you fail to comply with any term of this Agreement. In case of such termination, you must cease all use of the Service, and Amazon may immediately revoke your access to the Service without refund of any fees. Amazon's failure to insist upon or enforce your strict compliance with this Agreement will not constitute a waiver of any of its rights.

This operates automatically. No need for Amazon to give you notice. Your license has terminated. You must not use Amazon's "service", and, at least on a literal reading, you have no right to read your Kindle ebooks.

Of course, Amazon would never enforce this, would they? Probably not in most cases, but I think they probably already do in selected ones. These terms are a very big stick indeed. This may be one reason why Paul is finding it impossible to get a proper reply from Amazon as to their policy where accounts are terminated. In any case where there has been a breach Amazon arguably has no obligation whatsoever to allow any access to purchased ebooks. After all, such a former account-holder has no license to read them. Only if there has been no breach would Amazon literally have an obligation.

This has been a very cursory look and does not cover all objectionable terms in this admirably short and succinct document, let alone related relevant documents. I have not even tried to predict what a Court may do if ruling on some of these terms. I like Amazon, and have not singled them out for any reason other than the accessibility, clarity and limited size of the relevant terms and conditions. The practice of draconian agreements with terms that are most unlikely to be enforced is common in most industries, and I suspect most of Amazon's competitors will have similar or even worse terms. I certainly purchase most of my ebooks from Amazon and plan to continue to do so.

I might add that anyone who has ever removed DRM has not only breached their Amazon license agreement but that such agreement has terminated automatically. So, if you read these books, is it correct to say it is quasi-piracy?

At the end of the day I suspect that even many readers who are not totally indifferent to the terms and conditions don't bother with software and electronic content terms and conditions when they are so one-sided and draconian that they have no intention of being bound by them.

[HarryT]

Originally Posted by darryl

Arguing over which label to put on something is really a fruitless endeavour. Yes, legally the form is that of a license. But what does that mean for someone purchasing such a license? The main relevant distinction is that a license imposes conditions and may be subject to revocation for breach of at least the more important conditions.

It imposes restrictions, but it also grants rights over and above those which the law of the land would grant you as a purchaser. As I noted earlier in the thread, without the right to make copies that is granted by the licence, UK copyright law would make ebooks unusable.

[darryl]

@Harry. Yes, the license does also grant rights. However, a sale, particularly by rights owners themselves or by someone with the permission of the rights holder can also create such rights, usually by an express or implied license ancillary to the sale. In fact, a Court would quite likely hold that certain rights were implied by the sale so as to allow the purchaser to effectively use his or her purchase.

[HarryT]

Originally Posted by darryl

@Harry. Yes, the license does also grant rights. However, a sale, particularly by rights owners themselves or by someone with the permission of the rights holder can also create such rights, usually by an express or implied license ancillary to the sale. In fact, a Court would quite likely hold that certain rights were implied by the sale so as to allow the purchaser to effectively use his or her purchase.

I entirely agree with you, but it seems better to me that such rights should be explicitly granted in the licence, given that different countries have different domestic laws. I agree, though, that a reasonable person (which is the criterion used by British courts) would expect that if they bought an ebook, they were being granted sufficient rights to copy, etc, to allow them to actually read it.

[Doonge]

Originally Posted by MikeB1972

@Doonge
If you buy an item but can't use it because of DRM why is it different if it is digital or physical, how is a DVD not a similar form of built in obsolescence as a DRM'd ebook - if you don't have the hardware to use them they don't work (Well, the DVD has a nifty built-in coaster feature).

I don't think it is different.
If DVD had unbreakable DRM it would have made me buy a very limited amount (in the early days of the DRM CD/DVDs, I wasn't buying any, perhaps a reason I am like I am is because I had bad experience when DRM wasn't as mature as now perhaps and would be more of a pain that it might be now - I don't really know as I break them now for ease of use personally).

I think most DRM are a form of obsolescence because it depends on the existence of the right issuer and/or right management software.
To be honest, all things I buy have limited life, of course, but it mostly depends on me: whether or not I take care of my tools or my belongings.
And as DRM on their own do not bring me anything useful, I remove them.

[pwalker8]

Originally Posted by darryl

@Harry. Yes, the license does also grant rights. However, a sale, particularly by rights owners themselves or by someone with the permission of the rights holder can also create such rights, usually by an express or implied license ancillary to the sale. In fact, a Court would quite likely hold that certain rights were implied by the sale so as to allow the purchaser to effectively use his or her purchase.

Indeed Courts have already found that. Early on with regard to computer software licenses, the Courts determined that users had to right to make backup copies of the software, even though the license prohibited it. In the United States, contracts that are too one sided are generally found to be void. Both sides must gain something.

Unfortunately, the law is not as cast in stone as Harry wants it to be. Licensing, especially click through licensing, is a very, very grey area in the law and tend to be settled in a case by case basis. Companies claim all sorts of rights and limitations in their license. Just because someone claims something doesn't mean it will be upheld if it goes to court. For example, a license that revokes fair use is most likely going to be found invalid.

[pwalker8]

Originally Posted by HarryT

With a paper book you own the physical material on which the book is printed. An ebook has no physical component. What precisely is it that you believe that you own?

An ebook very much has a physical component. It may be bits and bytes, but it's real. I can read it and manipulate it. That collection of bits and bytes is what I purchased.

[HarryT]

Originally Posted by pwalker8

An ebook very much has a physical component. It may be bits and bytes, but it's real. I can read it and manipulate it. That collection of bits and bytes is what I purchased.

"Bits and bytes" are data - they are not physical objects. They can be copied to a physical medium, either as words on a printed page, or as magnetic fields on a hard disk, but they themselves have no physical existence. There's nothing physical to own with an ebook.

Are you saying that, in your opinion, you have not in fact purchased a licence, despite the bookstore telling you otherwise?