Student Suing Amazon For Book Deletions

Stupified writes "High school student Justin Gawronski is suing Amazon for deleting his Kindle copy of Nineteen Eighty-Four (complaint, PDF), because doing so destroyed the annotations he'd created to the text for class. The complaint states: 'The notes are still accessible on the Kindle 2 device in a file separate from the deleted book, but are of no value. For example, a note such as "remember this paragraph for your thesis" is useless if it does not actually reference a specific paragraph.' The suit, which is seeking class action status, asks that Amazon be legally blocked from improperly accessing users' Kindles in the future and punitive damages for those affected by the deletion. Nothing in Amazon's EULA or US copyright law gives them permission to delete books off your Kindle, so this sounds like a plausible suit."

Re:1984

[stainless-steel-vash]

Not all schools have it as required reading. I read it on my own while in High School, and currently re-reading it. We were assigned Brave New World, but not 1984. Kind of odd. I wonder, when this goes to court, will it be tried in Room 101? And if he loses, will he be deleted, or re-educated.

...so they needed to obtain it ex post facto

[Overzeetop]

If they didn't have the right to sell it, and it's illegal to reposess such a work through legal means, then they need to pay the copyright owner for the copies distributed. The lawyers can hammer out an agreement which will make Jeff & Co. look just a little harder the next time they go publishing a work. Of course, since Amazon knows how many they sold, that will make it easy for the copyright holder to sue for damages based on statutory infringement should the talks break down

Why is this so hard?

Re:Hrrm

[Jason Levine]

This would still be illegal. "But I was just retrieving someone that I accidentally sold to him when I didn't have the right to. I left his money on the dresser when I took the book." is not a valid defense for breaking and entering.

Re:This is really freakin' cool

[TooMuchToDo]

Won't work. If a contract is one-sided, with a huge benefit to one party but little benefit to the other ("fair exchange"), a judge will typically null the contract (in this case, a EULA).

Re:They didn't have the right to sell it...

[bhagwad]

Completely agree - and you missed out China. Also, the RIAA's "educational campaign" sounds Orweillean too.

Re:He has no case

[Whorhay]

I believe that applies to the service of providing ebooks and such as well as the wireless connection. The content already on the device might be a hard sell to a judge as a service that may be modified.

Re:Hrrm

[Anonymous Coward]

Two words: stripped book.

Re:Derivative work

[pete-classic]

Kindle customers now know to make a backup copy.

I generally agree with your post. But this comment shows that you aren't very clear on how Kindle works. It's all wireless magic. I briefly used Kindle on iPhone. You "buy" a book and it just appears. If you have multiple devices they all know what page you're on. If you drop your Kindle in the tub, presumably you buy another one and all of the content reappears.

It's all DRMed to high-heaven, and backup isn't on Amazon's agenda.

-Peter

PS: I'm also a generally happy Amazon customer. I'll buy their digital music, but not their digital books!

Re:They didn't have the right to sell it...

[tepples]

Amazon didn't know that it was still under copyright in the US

Surely the schema for books includes a date of first publication. In that case, here's a query to determine what books can be assumed to be still copyrighted:

SELECT asin, isbn, title, author
FROM books
WHERE YEAR(pubDate) >= 1923

This query will remain valid until at least December 2018 and, barring deep reform of U.S. congressional campaign finance, likely beyond that time.

Re:No case

[AxeTheMax]

If someone buys stolen property in good faith, never believing that it was stolen then the police inform them, they have absolutely no right to keep it and in all likelihood will not get their money back.

Agreed they have no right to keep the goods, but they did enter into the sale contract in good faith assuming the goods were legitimate. If the seller had no right to sell them, the buyer has every right to compensation from the seller.

Change of heart

[spagiola]

Sounds like Gawronski had a change of heart. On Sunday he was quoted in the New York Times [nytimes.com] saying:

"I'd like to live in a perfect world where I own this content and can do whatever I want with it," said Justin Gawronski, a high school student whose copy of "1984" was erased by Amazon, but who recently declined when a lawyer asked him to join a class-action lawsuit over the incident. Mr. Gawronski said, "This is probably going to happen again and we just have to learn to live with it."

(emphasis added)

Re:He has no case

[david_thornley]

Except that, reading the EULA, the book is independent of the Service. The buyer has a license to read the book on the Kindle OR in other ways as provided by the Service. Bear in mind that, in licenses and contracts like this, any ambiguities will be resolved in favor of the people who didn't write the license or contract. That's how free agency came about in Major League Baseball: the reserve clause was unclear, and the courts ruled that the interpretation that favored the players was preferred, since it was a standard MLB contract. (For the baseball-deprived, individual teams used to hold players' contracts, so that they could only play for one team. The "reserve clause" gave the team the option to renew a player's contract for a year, and the courts ruled that this allowed player to play out that year and then be free agents, free to negotiate with any team.)

Even if the language was clear, the courts could rule that it was part of a contract of adhesion, and therefore invalid. They could also rule that something that looks like a sale is an actual sale. Both sorts of rulings have happened in the past.

No, I'm not a lawyer either, but I do read Slashdot.

Re:It's time for the Minute of Hate

[astacom]

Neil Postman. Quoted in http://en.wikipedia.org/wiki/Brave_New_World [wikipedia.org] and a ref to "Postman, Neil (1985). Amusing Ourselves to Death: Public Discourse in the Age of Show Business. USA: Penguin USA. ISBN 0-670-80454-1" is provided there.

Re:1984

[networkBoy]

http://gutenberg.net.au/ebooks01/0100021.txt [gutenberg.net.au]

Re:1984

[clone53421]

Yeah, the Australian site has it.

Wikipedia says it's public domain in Canada, Australia, and Russia, and apparently other unnamed countries. However, it will not be public domain until the year 2044 in the US and 2020 in the E.U.

Ah but is it legal?

[TheLink]

While you might have the technical ability to do something, it does not necessarily mean you have the legal right to do something.

Gary McKinnon had the technical ability to get into certain computer systems and look at the data (he did not delete stuff), but he didn't have the legal right to do it, so he's facing extradition to the USA and potentially quite a number of years in prison.

Amazon had the technical ability to get into certain computer systems (Kindles) and delete the data. And Amazon deleted data without permission from people who thought they owned those certain computer systems.

I'm not a lawyer but whether that's legal depends on who owns those Kindles, and whether Amazon has been given extra special powers to delete data from systems they don't own.

FWIW, Amazon says "buy" Kindle, they don't say "rent".

Car repossessors still have to follow certain steps to repossess a car - they typically cannot break into garages to repossess the car - it has to be in an open area, in some cases they have to notify the buyer that they are going to repossess the car.

Similarly when a Bank seizes back property there are certain procedures they have to follow.

Another thing - the initial problem was with Amazon's _Partner_ selling stuff they shouldn't have, not Amazon themselves.

Just because a shop in Amazon Mall sells me stuff they shouldn't have doesn't mean that Amazon can send their Mall Guards to sneak into my house and remove it on behalf of that shop, even if Amazon Mall is afraid they might get sued.

If the shop has done something illegal, Amazon Mall could report it to the police - the cops are the ones who have powers to seize and destroy stuff. Lets all only have to deal with one bunch of thugs running around ok?

This about law and order.

They didn't have the right to take it back either

[MaizeMan]

Nope. Distribution of copyrighted works without permission is illegal. Possession isn't.That's why in all the p2p trials they have to argue the distribution to others angle.

The publisher who released the book to amazon without permission should be liable for damages, but customers bought them in good faith.

Does anyone here think that if this had been a hard copy, Barnes and Noble would track you down from your credit card number, and send someone to knock on your front door demanding you return the book?

Re:Precedent

[Anonymous Coward]

No, the real precedent that is very, very bad and very, very scary is that now, now publishers know that Amazon can remotely delete items from the Kindle, without user input.

--as if they didn't already know. What do you think the publishers asked when they met up with Amazon? Questions like this.

Re:This is really freakin' cool

[TooMuchToDo]

Umm, no. Whether something is a luxury item or not matters not at all in contract law. The principal still applies. You can sign a contract with an auto maker that says you own the car but they can take it back at anytime even if you own it, and they can come and *try* to take it, but a judge is going to bitchsmack them for the contract inequity, and nullify it.

For more research, google "contract inequity"

Re:This is really freakin' cool

[Cyner]

Parent is correct. A contract can be Unconscionable [wikipedia.org] under US law.

Re:Hacking laws

[Anonymous Coward]

Hacking laws on the books make it illegal to add, modify, or delete data on another person's computer without their consent. I believe it carries a pretty stiff sentence too, because it is a federal statute.

I am pretty sure that Amazon has no consent from anyone when they used their DRM to kill the book, so they could be in some deep water.

Also, since it was an an actual person that punched the enter key when it came time to revoke the DRM license, I wonder if they could be hit with the criminal hacking charge. The fact that invoking DRM controls could land you in the federal pen for 20 years might be a great way get corps to knock that shit off.

You're dreaming. The Sony rootkit fiasco was way worse than this but they barely got a slap on the wrist. At the rate we've been going, Amazon's punishment for this will be that their board of directors must go an entire day without having their shoes shined.

Re:Nope, just an opportunistic american.

[budgenator]

The law is actually clear, if you purchase something from a business that is in their normal line of business, you can assume the purchase was legal. I watched a court case where a sign company purchased a boat through barter from a marina. The Marina failed to pay the bank for the boat which they had purchased for resale on a revolving line of credit from the bank. The bank sued the sign company, the judge ruled that the sign company was not liable for the price of the boat because the marina sells boat in their normal course of business and the bank would have to sue the marina for their money. Like-wise the purchase of the book, purchasing the book from Amazon, a book seller should be able to assume that the book was purchased legally and the rights-holders should recover their royalties from Amazon. Amazon deleting the book from the purchaser attempted to void their illegal distribution, however distributing the book and deleting it is still distributing it; if you robbed a bank then later returned the money, the bank was still robbed. Amazon's deletion of the illegally distributed book is actually a confession of wrongdoing. Amazon now not only owes the purchaser for the price of the book and co-incidental damages caused by deletion of the book to the purchaser, but now also owes the rights-holders for royalties and civil penalties for the illegal distribution.

One would think that amazon's legal dept would be much sharper than what they just displayed.