On a dark and stormy night, an employee of your local bookstore strolls into your home, starts tossing books you’d purchased over the last few years into a box, and - despite your protest - takes them all away without saying a word.
Thankfully that’s not what happened to Linn Jordet Nygaard. Well, not exactly. The Norwegian woman found herself on the wrong side of bureaucracy, but the outcome was much the same (without as much mud on the carpet): Amazon turned off her Kindle account, blocking her from her own books. And they wouldn’t tell her why.
“Two weeks ago my Kindle started showing stripes on the screen and I contacted Amazon support,” Nygaard told NBC News. “Someone immediately found the Kindle in the system and told me they would replace it free of charge. They could only ship the replacement to UK because it was originally purchased there, and I told them I would find an address the next day. (I live in Norway, but have a friend who lives in London.)”
Nygaard was pleased with Amazon’s prompt service, she told us, even though this was her second Kindle to fall victim to “stripes” on the ePaper screen.
But when Nygaard attempted to log into her Amazon account the next day, her account was suspended - and with it access to her library of 43 books.
Those friendly phone-based customer support folks couldn’t access Nygaard’s account either, and she was passed on to “account specialists” who only communicated via email. That’s when things took a Kafkaesque turn (as documented by her friend, Martin Bekkelund, on his blog). A man named Michael Murphy with Amazon UK’s “Executive Customer Relations” told Nygaard her account had been determined to be “directly related to another which has been previously closed for abuse of our policies.” Which policies? He wouldn’t say. What other account? Murphy wouldn’t share that, either.
Instead, Murphy would only pass on this shrilly authoritarian boilerplate:
Per our Conditions of Use which state in part: Amazon.co.uk and its affiliates reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders at their sole discretion.
Please know that any attempt to open a new account will meet with the same action.
Now just to spoil the story, I’ll skip to the happy ending for Nygaard: After taking her story public, Amazon saw the error of their ways and restored her Kindle library. She’s still waiting on her replacement Kindle, but in the meantime has access to her library through the Kindle iOS app on her iPad.
But Amazon doesn’t get off the hook so easily. When we reached out to the company Monday, their PR representative would only send us a canned response they’d dropped into their customer forum: “We would like to clarify our policy on this topic. Account status should not affect any customer’s ability to access their library.” (Amazon loves copying-and-pasting, it seems.) Our follow up question - ”Why wasn’t [Nygaard] told why her account was cancelled?” - hasn’t been answered yet.
And it probably won’t be. Nygaard’s little dust-up with Amazon isn’t, in and of itself, a big deal. But it serves as a bitter reminder that we don’t ever truly own the digital goods and software we buy online. Instead, we rent them, or hold them in a sort of long-term lease, the terms of which are brokered and policed exclusively by the leaseholder.
As Boing Boing’s Cory Doctorow put it in a blog post yesterday:
This fine print will always have a clause that says you are a mere tenant farmer of your books, and not their owner, and your right to carry around your “purchases” (which are really conditional licenses, despite misleading buttons labeled with words like “Buy this with one click” – I suppose “Conditionally license this with one click” is deemed too cumbersome for a button) can be revoked without notice or explanation (or, notably, refund) at any time.
The core issue might actually be a simple matter of semantics: when we click a digital button that is labelled “Buy,” we expect that we’re actually buying something. But we’re not buying anything, we’re licensing it. Just last year, the Supreme Court ruled that the first-sale doctrine does not apply to software - or e-books. Or apps. Nor pretty much everything you “Buy” online that doesn’t get shipped to your home in a cardboard box.
Those long End User License Agreements you have to read before you use a new piece of software? Those are are legally binding, because you’ve clicked a button labeled “Agree.” But for some reason, online retailers can label their buttons “Buy” when they actually mean “Rent,” and there’s nothing we can do about it save filing a lawsuit.
You could call Nygaard’s experience a tempest in a teapot, a matter of a few hundred dollars worth of goods that, after a little public outcry, were fixed without issue. But you’d still be pretty angry if and when it happens to you. (It is worth noting that despite Amazon’s stated policy that customers can still access their previously purchased Kindle library even if their account is suspended, Nygaard couldn’t download her books to a new device because her account was suspended.
As she explained to us, “Before I started emailing Mr. Murphy, I could not log in to my account from Web or iPhone. And my Kindle screen was broken so the fact that the books were still there didn’t help me much.”
I was curious if there was any merit to my idea of attempting to hold retailers to these “Truth in Buttons” terms, so I asked Intellectual Property attorney Seth Greenstein, who wrote about about case law for reselling e-books a couple years back, if the notion held water. As Greenstein explained in an email to NBC News, it’s not all completely settled:
All sales through Apple and other online retailers are subject to terms of use that set forth the conditions of sale. You may buy a track from the iTunes Store that can be used on a certain number of devices, or a copy of an e-book that comes with restrictions as to the ability to lend or the devices on which it is viewable – a “sale” with “conditions.” The “conditions” apply only to the person who entered into the agreement; they do not necessarily bind a third party.
In the patent context, the Supreme Court this term has granted review of a case to determine whether first sale privileges are defeated by a purchase “with conditions.” Typically this arises where the seller marks products “single use only.” The question is whether that is enforceable only under contract law, in which case it applies only to the purchaser; or, as a matter of patent law, against anybody. Why does this make a difference? Take a case I litigated in which Lexmark placed a “single use” type of restriction on its cartridge boxes attempting to prevent its aftermarket competitors from refurbishing and refilling cartridges and selling them for far less than the price of a new cartridge. If the restriction is upheld under patent law, Lexmark could claim these aftermarket companies infringe its patents. If not, the aftermarket competitors may be lawful. The courts found that the first sale doctrine (called “patent exhaustion”) trumpted the single use restriction. Now the Supreme Court will have the last word.
If the world’s governments determine that customers don’t have the same right of ownership over digital goods as we do over our material goods, the least they could do is force companies Amazon to be truthful about what is sold, and what is actually just rented. And it will probably take a lawsuit or legislative action to force Amazon to speak truthfully about the transactions, if only because it changes the perceived value in a customer’s mind: £15 to rent a file that contains a book that can be taken away from you at any time, without explanation or recourse, starts to sound a little expensive.
This post is republished with permission from NBC News. Joel Johnson is a tech & science reporter who lives in Brooklyn. He is undecided about artisanal mayonnaise.













So if I was to pirate a piece of digital media, would I own that? I have not agreed to their terms and conditions that says I only rent them.
The answer to that is an incredibly involved philosophical question.
If you steal a book from a book shop, or find one in the street, can you be said to own it? If you look at a book and write out the contents, do you own that copy?
If you electronically copy text from a file onto your personal computer, what precisely do you own? The hardware, certainly. But the coding of that hardware? Who knows?
I knew I should have patented those 0′s and 1′s..
Right now, go and install Calibre and the appropriate plug-ins as per this page, and strip the DRM off your eBooks and back them up.
http://apprenticealf.wordpress.com/2011/01/13/ebooks-formats-drm-and-you-%E2%80%94-a-guide-for-the-perplexed/
Amazon, you can bite my shiny metal ass.
On it like a car bonnet.
What if I print out the ebook I downloaded and bind it in a paper cover?
You certainly own the paper. The content and the IP, probably not so much.
Probably be okay as long as I don’t sell the books, but would be a lot more expensive then just buying the book.
I have previously downloaded a PDF of an online magazine and printed it out to read on the train home.
Is that a Rollei in your profile picture?
I wish! No, it’s a Yashica A. It’s still capable of a nice picture, but I’m not shooting a lot of film at the moment, sadly.
Yeah, Rolleiflexes are going for silly money at the moment, I do miss mine though, and regret selling it. Currently using a Mamiya tlr and a Semflex that I got very cheaply. Probably wouldn’t be shooting film so much if I didn’t work in a photo lab though!
“matter of a few hundred dollars worth of goods”
If I was to replace all my paperbooks with kindle ones it would be at a cost of about £5k, hardly a small matter. As such I buy paper books and torrent them for kindle.
They pull shit like this then whinge when people pirate stuff? Going back to the often used (and I think correct) argument that DRM only messes with law abiding citizens. If you define pirating as making your stuff available to other people so they don’t have to pay, or vice versa, then no, I don’t pirate, or advocate it to others. However, if you define it as stripping DRM out so companies can’t pull stunts like this, so I can use content I’ve paid for, on any device I own, you better believe I support it.
Same thing happened to my old Steam account. Someone got into it, used it to do something dodgy (still not clear on what that was), account got disabled. Never got the account back and Steam support would barely give me the time of day let alone explain why my account was disabled. It is quite worrying that when it comes to digital goods there are pretty much no consumer rights.
This is why I still like to buy a physical copy of a game. But even then they (microsoft, sony) can still screw with you and render a game unusable.
If the game uses Steamworks (and plenty, if not most, PC games do these days), having a physical copy is irrelevant. I did have a physical copy for some of the games I had on that account. It doesn’t make a difference, they can still disable it. For Steam games, having a disc is just an alternate delivery method meaning you don’t have to download the game’s data. Apart from that and the fact that retailers can sell at a different price to the online marketplace, it is no different to buying it online.
Also worth noting this wasn’t one of the “big bad” companies that everyone likes to hate these days (MS, Sony, EA, etc.), it was the lovable Valve that treated me as guilty until proven innocent (except there was no opportunity to prove my innocence).
Yeah, I’m aware of games that must have a connection to the net to play etc but I’ve never encountered it myself.
So, as with governments restricting civil liberties in the name of protecting us from ‘terrorists’ or whatever, those very same liberties that are being taken away. Legit gamers/music listeners/film wathcers who don’t pirate get punished. Valve do seem to be on a more noticeable slippery slope of late too (sad times).
This kind of story has come up a few times now, but each time I’m always reminded that I don’t actually own my digital stuff. I was planning on migrating to PC gaming this coming summer but now I think I might (depending on how much money I have!) stick with buying physical copies of games…
To play devil’s advocate for a moment it is also true that when you buy a book you’re only buying the physical medium rather than the content, you still can’t type out a copy and sell that. One of the differences is that you can sell on the paper book, but at the same time if you lose or damage the book the seller isn’t going to give you another copy whereas if you get a new kindle/ipod you can redownload your stuff. Amazon, Apple and the like need to clarify whether they’re going to act like an old-style bookseller and not provide a new one if something happens to your account or if they’re providing this safety net – which, as it will often be their problem they, morally, should. If you do something to break their rules (such as piracy) and forfeit your account then it’s your own fault.