JULY 23, 2009
Buyer's E-Morse: 'Owning' Digital Books
Purchasing Electronic Tomes Online Gives Readers Fewer Legal Rights to Share and Resell Than Hard-Copy Customers Enjoy
By GEOFFREY A. FOWLER
WSJ
Buying electronic books on the Internet is easy -- but so is taking them away. That became clear last week when Amazon.com Inc. used its wireless technology to reach into customers' Kindle e-readers and deleted some e-books written by George Orwell. Amazon, which returned the cost of the e-books, said it made the move when it realized that the publisher didn't have the proper rights to sell the book in the U.S. That didn't satisfy Antoine J. Bruguier, a 28-year-old engineer in Milpitas Calif., who was stunned to find his copy of "Nineteen Eighty Four" missing from his Kindle on Friday. "They have the technical ability to do this, but I'm not sure if they have the legal right to do it," he says. "I love my Kindle, but if they can take back a book after I buy it, that bothers me."
After angry customers called the company an Orwellian "Big Brother," Amazon promised to change its system and "not remove books from customers' devices in these circumstances," according to a spokesman. Regardless, the incident raises some difficult questions about what it means to "own" books in the digital age. The same legal conundrums came up with music. Consumers raised on sharing records and CDs suddenly found themselves challenged in court by music companies for violating intellectual-property rights when doing the same thing through computers. Books have a more entrenched culture of sharing -- libraries exist for lending dog-eared volumes -- raising potentially knottier legal issues. Some experts say that, barring a creative industry solution, these matters can only be remedied by passing new laws that clearly define digital ownership.
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In legal terms at least, buying an electronic book is nothing like buying an old-fashioned paper book. A copyright concept known as the "first sale" doctrine allows the owner of a traditional book to do pretty much anything with it, including reselling it or lending it to a friend. Owning an e-book is more akin to licensing a piece of software: access comes with fine-print terms of service, and often digital rights management software to ensure that you abide by the rules. E-books bought from stores run by Amazon, Sony Corp. and Barnes & Noble Inc. often work only on those company's own designated devices. Amazon's always-connected Kindle Whispernet and Google Inc.'s Web-based book search function both treat books like a service, which has its advantages. Readers using them can access a wide range of books anywhere, authors can update or correct their work, and an intelligent network can keep track of bookmarks and notes.
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Case in point: an ordinary bookstore wouldn't be allowed to come into a buyer's home to retrieve a book that he or she owned. Legal experts are divided on whether Amazon broke its own contract with consumers by removing the Orwell e-books. The fine print in the company's terms of service gives consumers the "right to keep a permanent copy" of purchased titles, but also reserves Amazon's "right to modify, suspend, or discontinue the service at any time." Still, U.S. law generally supports the terms of service imposed by companies -- so long as they're listed up-front. Few terms of service challenges for digital media have been taken to court. In 2005, Ms. Cohn's organization supported a successful challenge against the record label Sony BMG over its inclusion of digital rights management software on its music CDs, which limited their use. The record label eventually settled the case and stopped using the software.
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Sharing e-books puts libraries in a particular pickle. The Seattle Public Library has purchased 30,000 e-books and digital-audio books for its patrons to borrow. But those e-books don't reside anywhere at the library. Instead, it has a continuing license to them provided by a company. In exchange for maintenance fees and a full purchase price for each e-book, Overdrive Inc. runs lending systems for Seattle and 9,000 other libraries. When a patron wants to check out an e-book, Overdrive allows them to download a copy with software that causes the file to become unreadable after a due date -- after which another patron can check out that "copy." But there are strings attached: Overdrive's books can be read on computer screens and on Sony's Reader device, yet aren't compatible with Amazon's Kindle -- a top request from patrons. And should Overdrive ever go out of business -- or should something happen to its centralized collection -- the Seattle library's huge e-book collection could theoretically disappear. "I'm more concerned about structural, often accidental, massive loss of digital content than isolated, evil machinations," says the Internet Archive's Mr. Brantley.
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