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Kindle: How To Buy A Book But Not Own It—A Commentary by Michael Seringhaus ’10

The following commentary was published in The Hartford Courant on August 5, 2009.

Kindle: How To Buy A Book But Not Own It
By Michael Seringhaus ’10

On July 17, Amazon wirelessly reached into thousands of Kindle electronic reading devices and removed certain customers' books. The withdrawn titles — digital copies of George Orwell's novels "1984" and "Animal Farm" — apparently lacked proper copyright authorization. But Amazon's grabby remedy startled many Kindle users, who were until then apparently unaware that books they had paid for could simply disappear.

A few days later, Amazon CEO Jeff Bezos apologized and sheepishly pledged to "make better decisions" in the future. He neglected to mention, however, what few Kindle users seem to realize: Yanking books from users' machines was acceptable under the Kindle terms of service, and remains so today.

Why? Because according to Amazon, you can never own a Kindle book.

With luck, courts will one day disagree.

Most of us take for granted that books can be bought, sold, lent out and passed on. Copyright law protects that right: As long as you do not violate the copyright on a book's content (say, by duplicating its pages), what you do with a purchased copy is up to you.

The seller's rights to a printed copy are extinguished at its sale, and certainly do not include barging into your living room and grabbing it from your bookshelf.

According to Amazon, Kindle books are different. Customers never actually buy a digital copy. Instead, they buy only a limited license to read that book in digital form. Amazon can revoke this license at any time and for any reason.

Perhaps unsurprisingly, this policy is not highly publicized — and until the Orwell incident, most users were unaware of it. The Kindle device doesn't contain these terms of use, and users need not even click past them before downloading their first e-book. To find the Kindle terms, users must locate a tiny Amazon hyperlink labeled "Conditions of Use" on the opening page, then drill down through several pages. But why bother? Amazon claims that users automatically accept all posted terms simply by using its website.

Meanwhile, the very public Amazon opening page reinforces the idea of traditional sale and ownership for Kindle books. Without clarification, footnotes or fine print, the Kindle Store invites customers to "buy" Kindle books, which are presented as merely another "edition" of their print counterparts.

This confusing practice masks a more serious issue: Amazon is exploiting the novelty of the Kindle to radically alter book ownership and kill the used book market. After all, if you don't own a Kindle book, you can't sell it, either.

These aggressive license terms, however, could prove unenforceable in court for several reasons.

First, courts have curbed retailers' desire to exert downstream control. In 1908, for instance, a publisher tried to impose a minimum resale price on its books. The Supreme Court rejected the attempt, allowing consumers to resell books at whatever price they choose.

Second, licensing — which is particularly popular among software distributors — has not gone unchallenged. Some U.S. courts have ruled that certain software licenses are in fact sales, a move that severely curbs distributors' downstream control. No court has yet ruled whether licensing is appropriate for e-books, which leaves Amazon in uncharted waters.

Third, even if licensing e-books is deemed acceptable, Amazon's conditions of use may not be enforceable. Contracts require mutual assent. Agreements posted in the background on the Web — purporting to bind users without any action on their part — are known as "browsewrap," and their legality as contracts is unclear.

Finally, digital content need not be licensed simply because it is easily copied. Copyright law has repeatedly shown its strength in protecting easily duplicated content, even when that content is sold. Faced with the advent of photocopiers, scanners and digital cameras, courts reinforced copyright protection for printed matter, but never questioned its status as sold material. Moreover, digital rights management technology offers viable ways to ensure single-copy transfer of owned digital content.

The Kindle is an elegant and popular device, its e-books cheap and convenient. But licensing e-books is bad policy. Going digital should not mean relinquishing long-established rights to our personal libraries.

Michael Seringhaus is entering his third year at Yale Law School. He is writing on Amazon Kindle and e-book licensing in the forthcoming issue of the Yale Journal of Law and Technology.