I finally found the Kindle license agreement, via an InformationWeek piece, and wondered if there was anything in it that suggested that they have users' acceptance of the right to dekindle materials.
Here it is, with my annotations embedded in square brackets.
Amazon Kindle: License Agreement and Terms of UseLast updated: February 9, 2009
THIS IS AN AGREEMENT BETWEEN YOU AND AMAZON DIGITAL SERVICES, INC. (WITH ITS AFFILIATES, "AMAZON" OR "WE"). PLEASE READ THIS LICENSE AGREEMENT AND TERMS OF USE, AND ALL RULES AND POLICIES FOR THE KINDLE DEVICE AND SERVICES RELATED TO THE DEVICE (INCLUDING, BUT NOT LIMITED TO, ANY RULES OR USAGE PROVISIONS SPECIFIED ON THE AMAZON.COM WEBSITE OR THE KINDLE STORE, AND THE AMAZON.COM PRIVACY NOTICE LOCATED AT WWW.AMAZON.COM/PRIVACY (COLLECTIVELY, THIS "AGREEMENT") BEFORE USING THE KINDLE DEVICE. BY USING THE KINDLE DEVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, YOU MAY RETURN THE KINDLE DEVICE AND ASSOCIATED SOFTWARE (WITH ALL ORIGINAL PACKAGING) WITHIN THIRTY (30) DAYS OF PURCHASE FOR A REFUND OF ITS PURCHASE PRICE IN ACCORDANCE WITH THE KINDLE RETURN POLICY.
1. The Device and Related Services
2. Wireless Connectivity
3. Digital Content
4. Software
5. General1. The Device and Related Services
The Kindle Device (the "Device") is a portable electronic reading device that utilizes wireless connectivity to enable users to shop for, download, browse, and read books, newspapers, magazines, blogs, and other materials, all subject to the terms and conditions of this Agreement. The "Service" means the wireless connectivity, provision of digital content, software and support, and other services and support that Amazon provides Device users.
2. Wireless Connectivity
General. Amazon provides wireless connectivity free of charge to you for certain content shopping and downloading services on your Device. You may be charged a fee for wireless connectivity for your use of other wireless services on your Device, such as Web browsing and downloading of personal files, should you elect to use those services. We will maintain a list of current fees for such services in the Kindle Store. Amazon reserves the right to discontinue wireless connectivity at any time or to otherwise change the terms for wireless connectivity at any time, including, but not limited to (a) limiting the number and size of data files that may be transferred using wireless connectivity and (b) changing the amount and terms applicable for wireless connectivity charges.
Coverage and Service Interruptions. You acknowledge that if your Device is located in any area without applicable wireless connectivity, you may not be able to use some or all elements of the wireless services. We are not responsible for the unavailability of wireless service or any interruptions of wireless connectivity.
Your Conduct. You agree you will use the wireless connectivity provided by Amazon only in connection with Services Amazon provides for the Device. You may not use the wireless connectivity for any other purpose.
[Note that Amazon does not say that they will limit themselves to using the wireless connectivity for 'only these purposes'.]
3. Digital Content
The Kindle Store. The Kindle Store enables you to download, display and use on your Device a variety of digitized electronic content, such as books, subscriptions to magazines, newspapers, journals and other periodicals, blogs, RSS feeds, and other digital content, as determined by Amazon from time to time (individually and collectively, "Digital Content").
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.
[Grants the rights to users to have a permanent copy of materials paid for. Hmmm. That seems unequivocal.]
Restrictions. Unless specifically indicated otherwise, you may not sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any rights to the Digital Content or any portion of it to any third party, and you may not remove any proprietary notices or labels on the Digital Content. In addition, you may not, and you will not encourage, assist or authorize any other person to, bypass, modify, defeat or circumvent security features that protect the Digital Content.
[This is where the materials are clearly not 'owned' in the conventional sense, since anything I own I should be able to sell, rent, trade, etc.]
Subscriptions. The following applies with respect to Digital Content made available to you on a subscription basis, including, but not limited to, electronic newspapers, magazines, journals and other periodicals (collectively, "Periodicals"): (i) you may request cancellation of your subscription by following the cancellation instructions in the Kindle Store; (ii) we may terminate a subscription at our discretion without notice, for example, if a Periodical is no longer available; (iii) if we terminate a subscription in advance of the end of its term, we will give you a prorated refund; (iv) we reserve the right to change subscription terms and fees from time to time, effective as of the beginning of the next term; and (v) taxes may apply to subscription fees and will be added if applicable.
[Hmmm. By one interpretation of events Amazon was treating the books they dekindled as being subscriptions. But this doesn't say anything about deleting old copies.]
4. Software
Definitions. The following terms apply to the Device and to (a) all software (and the media on which such software is distributed) of Amazon or third parties that is pre-installed on the Device at time of purchase or that Amazon provides as updates/upgrades to the pre-installed software (collectively, the "Device Software"), unless you agree to other terms as part of an update/upgrade process; and (b) any printed, on-line or other electronic documentation for such software (the "Documentation"). As used in this Agreement, "Software" means, collectively, the Device Software and Documentation.
Use of the Device Software. You may use the Device Software only on the Device. You may not separate any individual component of the Device Software for use on another device or computer, may not transfer it for use on another device or use it, or any portion of it, over a network and may not sell, rent, lease, lend, distribute or sublicense or otherwise assign any rights to the Software in whole or in part.
No Reverse Engineering, Decompilation, Disassembly or Circumvention. You may not, and you will not encourage, assist or authorize any other person to, modify, reverse engineer, decompile or disassemble the Device or the Software, whether in whole or in part, create any derivative works from or of the Software, or bypass, modify, defeat or tamper with or circumvent any of the functions or protections of the Device or Software or any mechanisms operatively linked to the Software, including, but not limited to, augmenting or substituting any digital rights management functionality of the Device or Software.
Automatic Updates. In order to keep your Software up-to-date, Amazon may automatically provide your Device with updates/upgrades to the Software.
Export Regulations. You agree to comply with all export and re-export restrictions and regulations of the Department of Commerce and other United States agencies and authorities, and not to transfer, or encourage, assist or authorize the transfer of the Software to a prohibited country or otherwise in violation of any such restrictions or regulations.
Government End Users. The Software is a "Commercial item" as that term is defined at 48 C.F.R. § 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with these provisions, the Software is being licensed to U.S. Government end users (a) only as a Commercial item and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
5. General
No Illegal Use and Reservation of Rights. You may not use the Device, the Service or the Digital Content for any illegal purpose. You acknowledge that the sale of the Device to you does not transfer to you title to or ownership of any intellectual property rights of Amazon or its suppliers. All of the Software is licensed, not sold, and such license is non-exclusive.
[They stipulate that the Kindle user does not acquire intellectual property rights of materials they buy, or of the software,and the software is only licensed not sold to the user. In this way Amazon has the right to decommission the software so that a user can't read their books?]
Information Received. The Device Software will provide Amazon with data about your Device and its interaction with the Service (such as available memory, up-time, log files and signal strength) and information related to the content on your Device and your use of it (such as automatic bookmarking of the last page read and content deletions from the Device). Annotations, bookmarks, notes, highlights, or similar markings you make in your Device are backed up through the Service. Information we receive is subject to the Amazon.com Privacy Notice.
[They mention 'annotations, bookmarks, notes, highlights, or similar markings' that users can make in their materials, and note that they can be backed up. Nowhere do they suggest that such annotations can be deleted by Amazon, as happened with the dekindling incident.]
Patents. The Device and/or methods used in association with the Device may be covered by one or more patents or pending patent applications.
Changes to Service. Amazon reserves the right to modify, suspend, or discontinue the Service at any time, and Amazon will not be liable to you should it exercise such right.
[The big squiggle paragragh: they can change anything at any time, and Amazon is not liable to the users if it does so. My sense is that this in unenforceable, since the basic premise of the service is that customers are buying permanent -- although limited -- rights to the enjoyment of the books they purchase and own.]
Termination. Your rights under this Agreement will automatically terminate without notice from Amazon if you fail to comply with any term of this Agreement. In case of such termination, you must cease all use of the Software and Amazon may immediately revoke your access to the Service or to Digital Content without notice to you and 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.
[Not applicable, since the dekindled users were not failing to comply with the agreement, or at least Amazon has not claimed they have.]
Disclaimer of Warranties. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE, DEVICE, DIGITAL CONTENT AND SOFTWARE IS AT YOUR SOLE RISK. EXCEPT FOR THE ONE-YEAR LIMITED WARRANTY, THE SERVICE, DEVICE, DIGITAL CONTENT AND SOFTWARE ARE PROVIDED "AS IS" WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND AND AMAZON AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AMAZON OR AN AUTHORIZED REPRESENTATIVE OF AMAZON SHALL CREATE A WARRANTY. THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, NEITHER AMAZON NOR ITS SUPPLIERS OR LICENSORS SHALL BE LIABLE TO YOU FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY RELATED TO THE SERVICE, DEVICE, DIGITAL CONTENT OR SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES ARISING OUT OF LOSS OF PROFITS, REVENUE, DATA OR USE OF THE DEVICE OR SOFTWARE OR ANY ASSOCIATED PRODUCT, EVEN IF AMAZON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, AMAZON'S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID FOR THE DEVICE. THE LAWS OF CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
Washington Law Applies. The laws of the state of Washington, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and Amazon.
Disputes. ANY DISPUTE ARISING OUT OF OR RELATING IN ANYWAY TO THIS AGREEMENT SHALL BE SUBMITTED TO CONFIDENTIAL ARBITRATION IN SEATTLE, WASHINGTON, EXCEPT THAT, TO THE EXTENT YOU HAVE IN ANY MANNER VIOLATED OR THREATENED TO VIOLATE AMAZON'S INTELLECTUAL PROPERTY RIGHTS, AMAZON MAY SEEK INJUNCTIVE OR OTHER APPROPRIATE RELIEF IN ANY STATE OR FEDERAL COURT IN THE STATE OF WASHINGTON, AND YOU CONSENT TO EXCLUSIVE JURISDICTION AND VENUE IN SUCH COURTS. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class arbitration proceedings or otherwise.
Severability. If any term or condition of this Agreement shall be deemed invalid, void, or for any reason unenforceable, that part shall be deemed severable and shall not affect the validity and enforceability of any remaining term or condition.
Amendment. Amazon reserves the right to amend any of the terms of this Agreement at its sole discretion by posting the revised terms on the Kindle Store or the Amazon.com website. Your continued use of the Device and Software after the effective date of any such amendment shall be deemed your agreement to be bound by such amendment.
[More weaseling]
Contact Information. For communications concerning this Agreement, you may contact Amazon by writing to Amazon.com, Attn: Legal Department, 1200 12th Avenue South, Suite 1200, Seattle, WA, 98144-2734.
So, a close reading by a law-savvy lay person suggests that Amazon never stated that it had the rights to dekindle books or other materials once legally purchased or acquired through a subscription. In fact, Amazon never mentions that dekindling is possible.
While they do assert the rights to change all the terms of the agreement at will, it is unlikely that a court would support the notion that they could delete legally purchased materials, and especially users' annotations, which are clearly owned freely by the users.
So, the likelihood is that Amazon will offer some settlement to those who were harmed by this. I am betting hundreds of dollars per person. And those who lost extensive notes are likely to be able to claim higher damages.
This is an enormous mess for Bezos and Amazon, and the license agreement is not going to protect them from their misdeeds.
The various folks interviewed by IW writer Thomas Claburn are more measured, and suggest that Amazon may have more rights than I do. We'll see.
Dekindling. I like it.
The irony of 1984 being the test subject to demonstrate Amazon's control over your device has a certain Ouroboros elegance.
However, more frightening than the deletion and the subsequent 'explanation', is the very real possibility of updates and changes to materials that you are renting, such as textual changes that may be made at their discretion without either your permission, consent or being informed.
The majority of the agreement is boilerplate, with the usual weasleling of using their arbitration, software rental, and no liability for any act on their part.
Ya need to set up a website where folks can send their kindles to be boxed up and shipped back to Amazon.
Posted by: the head lemur | July 19, 2009 at 06:32 PM
Actually, it's completely likely that a court will enforce the right-to-modify clause. That's part of what you agree to when you accept the terms of the license: that the agreement can be amended at any time. This sort of thing is almost always enforceable.
As for the "settlement," well, you can't bring a class action suit in arbitration, and the Kindle EULA requires arbitration ("ANY DISPUTE ARISING OUT OF OR RELATING IN ANYWAY TO THIS AGREEMENT SHALL BE SUBMITTED TO CONFIDENTIAL ARBITRATION IN SEATTLE").
Here's a good summary of these issues: http://blogs.geniocity.com/friedman/2009/07/amazon-eulas-and-orwells-memory-hole/
So there's probably not a whole lot anyone can do. The license protects Amazon very well. But I think the PR problem will have some effect -- despite the lack of legal recourse.
Posted by: marciw | July 20, 2009 at 10:33 AM
Marciw
I don't buy it. The nature of what they did is unlikely to be considered to be within bounds. For example, they couldn't press a button somewhere that listens to what is being said near the Kindle, and claim it is just changing the terms. There is a reasonableness associated with the buying 'permanent copies' of the works. And at any rate that should cover their ability to delete peoples annotations.
Posted by: Stowe Boyd | July 20, 2009 at 10:56 AM
Stowe - as I wrote (on the post Marciw links to), I agree with you that Amazon is in breach (because of the agreement the licensee gets a "permanent" copy), but whether there is a breach or not (and another legal wrong regarding the annotations, notes, etc.) is really irrelevant given that there's a mandatory arbitration provision and there's no class action available in arbitration.
What are you going to do -- hire a Seattle lawyer (arbitration must be in Seattle) and pay the cost of arbitration for the few bucks in damages you could at best (and not very likely at that) get? Even if you could get statutory damages for copyright infringement, it wouldn't be worth it.
These arbitration provisions (not to mention the provisions providing a unilateral right to amend without notice) are noxious. Unfortunately, no court has seen fit to knock down the arbitration provisions. I'm not sure whether the unilateral amendment provisions have ever been genuinely tested.
Posted by: Peter Friedman | July 20, 2009 at 12:07 PM
Maybe there is hope after all - in Harris v. Blockbuster (http://www.karlbayer.com/blog/?p=2151) the court refused to enforce an arbitration provision precisely because the contract provided a unilateral right to amend. I've got to research this point more, but it seems on its face to be consistent with Texas law. I see reason, though, to think it wouldn't be under the law of many states. The court says the agreement to arbitrate is "illusory" because it can be amended without notice. I would think that in most states the un-amended contract would be enforceable and terms that were added by amendment MIGHT be deemed illusory.
Posted by: Peter Friedman | July 20, 2009 at 12:19 PM
Stowe, I hope you're right. But how is it going to be declared reasonable or unreasonable if nobody can sue? All disputes have to be settled by arbitration, and there's no way to bring a class action in arbitration -- each user who had the book deleted would have to go through arbitration individually (in Seattle!), which seems highly unlikely. So without the option to file a class action lawsuit, how will the question even be asked?
It just seems to me that whether Amazon was actually allowed to dekindle the books or not, the license agreement will "protect them from their misdeeds" very well by ensuring that no collective legal action can be taken.
Posted by: marciw | July 20, 2009 at 12:22 PM
Marciw - What I am saying is that just because a user has an agreement with Amazon that governs the use of the device, Amazon is not free to break other established laws. People in the US cannot sign away all other rights in contracts.
Posted by: Stowe Boyd | July 20, 2009 at 02:42 PM
The EULA above discusses that you own a license to a book, but is this license agreement for the individual books available?
Posted by: Ed G | July 22, 2009 at 02:52 PM
Ed - I don't think there is an individual agreement for each book. When you 'purchase' an e-book, you are granted the license as defined in the EULA.
Posted by: Stowe Boyd | July 22, 2009 at 03:23 PM
So How does the term "legally" aquire come into play? There is no legal purchase here. The "sales" here were not legal because Amazon didn't have the right to publish or license the material. So how does the end user have the legal right to the content? Question number two is about the circumstances preceeding removal... was there some enforcement of the actual owners copy write in the removal? IE was Amazon forced to remove the content by a legally binding settlement or judges decision related to the illegal publication/distribution? So did they even have a choice?
Posted by: Timm | July 31, 2009 at 04:25 PM