Amazon's next Kindle class action suit
Only days after Amazon changed its refund policy in an attempt to settle a class action suit over Kindle eReader covers that had a habit of cracking the screens on the computers, Amazon finds itself in murky legal water after using its embedded software to delete books from consumer's Kindles that had been improperly sold to those customers.
As first reported by the New York Times, Drew Herdener, explained by e-mail that the company which uploaded the books to the Kindle Store had not acquired the rights to sell the books in the Kindle format. “When we were notified of this by the rights holder, we removed the illegal copies from our systems and from customers’ devices, and refunded customers,” he said.
Oops.
Of course Amazon was obligated to immediately stop selling the bootleg copies of the books. It could even face copyright violations for the sales of those books. Worse still, it might have been obligated to inform the purchasers that they had unintentionally purchased illegal copies and were responsible to destroy the illegal copies or face their own copyright liability. At that point, of course, Amazon would also be expected to refund the cost of those books and perhaps offer a coupon to those customers as a goodwill gesture.
But Amazon skipped the step where it informed its customers of the customer's obligation not to keep bootleg books. Instead, Amazon used its software to delete the books directly from the Kindle. As the New York Times correctly pointed out, the Terms of Service do not give Amazon the rights to exercise the self-help it just chose to use.
Section 5(a) of the FTC Act, which provides that "unfair or deceptive acts or practices in or affecting commerce...are...declared unlawful." It is a broad, general catch-all. It was the statute that forced Sony to stop putting hidden encryption software on its music CDs, and will serve well in this case. Section 5(b) allows for administrative processes. Expect the FTC to respond to consumer complaints with an administrative process and an agreement by Amazon not to use its software tether in this manner ever again. Amazon will also pay a fine and the adminstrative costs of the investigation.
Whether this will satisfy the lawyers lining up to bring the class action lawsuit in this case remains to be seen. But I doubt it.
Given that the books deleted include George Orwell's Nineteen Eighty-Four, the lesson of a corporation being able to delete (or at least technologically - to alter) the text of a purchased book should not be lost on anyone. (A second irony is that a website has Orwell's complete works online.) This is more than a mere gaff. Amazon needs to be found liable for this mistake by a court or administrative process that makes it clear that companies cannot retain this right in their terms of service agreements.
So perhaps we should be thankful for the blunder Amazon has made. Deleting copies of Nineteen Eighty-Four should serve to provide another reminder of the liberties we take for granted and the technologies that have the potential to put those liberties at risk.
As first reported by the New York Times, Drew Herdener, explained by e-mail that the company which uploaded the books to the Kindle Store had not acquired the rights to sell the books in the Kindle format. “When we were notified of this by the rights holder, we removed the illegal copies from our systems and from customers’ devices, and refunded customers,” he said.
Oops.
Of course Amazon was obligated to immediately stop selling the bootleg copies of the books. It could even face copyright violations for the sales of those books. Worse still, it might have been obligated to inform the purchasers that they had unintentionally purchased illegal copies and were responsible to destroy the illegal copies or face their own copyright liability. At that point, of course, Amazon would also be expected to refund the cost of those books and perhaps offer a coupon to those customers as a goodwill gesture.
But Amazon skipped the step where it informed its customers of the customer's obligation not to keep bootleg books. Instead, Amazon used its software to delete the books directly from the Kindle. As the New York Times correctly pointed out, the Terms of Service do not give Amazon the rights to exercise the self-help it just chose to use.
Use of Digital Content. Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use. Digital Content will be deemed licensed to you by Amazon under this Agreement unless otherwise expressly provided by Amazon.Amazon's license does not include either self-help or revocation. If the Kindle is a networked computing device of the type protected by federal law, then the tampering with the content stored on that device could potentially be considered a federal crime. More likely, however, the interference with the devices done in a manner beyond the terms of service agreement will be considered a violation of the Federal Trade Commission Act.
Section 5(a) of the FTC Act, which provides that "unfair or deceptive acts or practices in or affecting commerce...are...declared unlawful." It is a broad, general catch-all. It was the statute that forced Sony to stop putting hidden encryption software on its music CDs, and will serve well in this case. Section 5(b) allows for administrative processes. Expect the FTC to respond to consumer complaints with an administrative process and an agreement by Amazon not to use its software tether in this manner ever again. Amazon will also pay a fine and the adminstrative costs of the investigation.
Whether this will satisfy the lawyers lining up to bring the class action lawsuit in this case remains to be seen. But I doubt it.
Given that the books deleted include George Orwell's Nineteen Eighty-Four, the lesson of a corporation being able to delete (or at least technologically - to alter) the text of a purchased book should not be lost on anyone. (A second irony is that a website has Orwell's complete works online.) This is more than a mere gaff. Amazon needs to be found liable for this mistake by a court or administrative process that makes it clear that companies cannot retain this right in their terms of service agreements.
So perhaps we should be thankful for the blunder Amazon has made. Deleting copies of Nineteen Eighty-Four should serve to provide another reminder of the liberties we take for granted and the technologies that have the potential to put those liberties at risk.
