Ridiculous lawsuit against Amazon

Ridiculous lawsuit against Amazon

Summary: Don't like DRM and Amazon's ability to access your Kindle? The solution is easy: Don't buy a bloody Kindle!

SHARE:

Don't like DRM and Amazon's ability to access your Kindle? The solution is easy: Don't buy a bloody Kindle!

The blogosphere and regular news outlets are buzzing again with a rekindled (pun definitely intended) story of the young man who lost summer work when Amazon deleted his copy of George Orwell's 1984. Apparently the media exposure Justin Gawronski received during the previous uproar wasn't enough. Now, according to PRNewsChannel.com, Mr. Gawronski is suing Amazon for damages over his lost work. According to the complaint,

As part of his studies of “1984,” Mr. Gawronski had made copious notes in the book. After Amazon remotely deleted “1984,” those notes were rendered useless because they no longer referenced the relevant parts of the book. 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 a reference a specific paragraph. By deleting “1984” from Mr. Gawronski’s Kindle 2, this is the position in which Amazon left him. Mr. Gawronski now needs to recreate all of his studies.

Gawronski's lawyers also allege

“Technology companies increasingly feel that because they have the ability to access people’s personal property, they have the right to do so. That is 100% contrary to the laws of this country,” said Edelson.

Of course, a quick read of the Amazon Kindle Terms of Service shows that Amazon absolutely does have the right to do what they will with your books:

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...

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.

Further examination of the Terms of Service show them to highly favor Amazon and leave users with little recourse no matter what situation might arise. Guess what, Mr. Gawronski? When you opened your Kindle, you agreed to these terms.

If you have a problem with the terms, don't buy a Kindle. If you just want access to a vast, convenient library of titles, then go for it. If DRM and Amazon's Draconian Terms of Service bother you, then plenty of new e-readers are coming to market to challenge Kindle. Just don't turn around and sue Amazon when they live up to their terms.

Topics: Hardware, Amazon, Enterprise Software, Legal, Mobility, Security

Christopher Dawson

About Christopher Dawson

Chris Dawson is a freelance writer, consultant, and policy advocate with 20 years of experience in education, technology, and the intersection of the two.

Kick off your day with ZDNet's daily email newsletter. It's the freshest tech news and opinion, served hot. Get it.

Talkback

69 comments
Log in or register to join the discussion
  • RE: a quick read of [the TOS] shows that Amazon absolutely [has] the right

    your claim is ludicrous. The health insurance industry wants to take
    your money until you get sick-- then you're on your own; the credit
    card industry reserves the right to change your lending agreement
    -- especially when you're vulnerable; and Amazon wants to be similarly
    stupid and assert "their rights" whenever they wish and that's what
    they do since the company recently censored their book list; in fact,
    people had to remind Amazon that they're supposed to be a content
    provider, not the thought police.
    mistermachine
    • Vote with your bucks

      Who would buy such a thing? Let's all vote with our bucks and refuse to buy their product. They will change or have a warehouse full of these things around ...

      And it's tough to miss the irony of Big Brother here ...
      timbrady1124@...
      • Right On

        They certainly made George Orwell's books more provactative!

        He's certainly rolling around in his grave these days!

        "Global Warming Is A Problem" unless you're a Vice President who needs to fly around on private jets and entertain guests in power hungry mansions.

        "Health care isn't a right" unless you're a member of congress with tax funded benefits.

        "Pensions aren't important" unless you're a CEO who earned it.

        "Wealth disparities aren't ethical" for Communists but they're just fine otherwise.

        "Women should have equal rights," as long as they live in Afghanistan and Iraq.
        mistermachine
    • Claiming a right and having the right are different

      This points to the major flaw in ALL EULAs/TOS and provides even more incentive for somebody to directly challenge their legality. You can literally CLAIM to have the right to take somebody's first born child in your EULA/TOS for a piece of media or device. Does that mean you really have that right? Outlandish claims should NOT be allowed.

      Whether somebody reads the EULA/TOS has nothing to do with outrageous "rights" assumptions. Saying you are merely "renting" or "leasing" somebody a piece of media is total BS, particularly when the exact same media is available in another format which is covered by the "First Sale" doctrine. Print is another way of distributing a book. A printed book is OWNED and it can be resold according to the doctrine of "First Sale." Saying that same book sent as a text file is not OWNED is completely ludicrous. In fact, making that claim is every bit as ludicrous as saying the purchase of the book means you own their children. I sincerely hope a judge with a brain establishes this fact as soon as possible.

      What Amazon did was completely and entirely wrong. If a publisher forced them to do it, then Amazon should be suing that publisher to establish the validity of their outlandish legal claim. Once a book, DVD, CD, software, or other media is sold to a person, "First Sale" should kick in. Claims to the contrary in your TOS or EULA should be negated by precedents already set in courts long ago.
      BillDem
  • Wrong!

    Chris, I'm a lawyer and I have to disagree with you. Our legal system does not allow companies to adopt a "we can do whatever we want" position. Check out the federal Magnusson-Moss Act. Under state laws called the Uniform Commercial Code sellers of "goods, wares and merchandise" give "implied warranties" related to quality, etc. As you are aware, sellers of software try to disclaim those warranties with large uppercase "AS IS" disclaimers. But the Magnusson-Moss Act says that if the value of the item exceeds a certain amount, any such disclaimers are void.

    If the guy lost his job because his research was rendered useless, I would say he probably does have a decent case. None of the sections you quoted say Amazon can take back content with impunity. There is a huge difference between "you can read the words in this book but you don't own the right to re-use them as you wish" versus "we can take back the book anytime we want". That is basically what Amazon did. Under the law, "modify, suspend, discontinue", etc., would be interpreted to apply only [b][i]prospectively[/i][/b], it would not allow unilateral retroactive cancellation.
    Rick_R
    • I have to agree

      There is a large difference between not properly having and giving the proper rights to own a work, and going into YOUR property without permission or even any notice, to erase it.
      Microsoft supposedly licenses the Windows OS, but what do you think would happen if they went into everyone's computer and deleted it, and refunded their money? I'll tell you... ... Everyone would freak! Riots. Lawsuits. Mobs of people storming MS's headquarters.

      Imagine of a software company, hypothetically went into an airliners navigation and deleted the software (with a refund). "But it's in the TOS" the executive would say, as he's lead out of the building in handcuffs.

      So, just because it's a piece of literature doesn't mean Amazon can just pop into YOUR equipment and delete it.
      el1jones
    • I'd go further with this argument but am unsure of legal grounding

      When you buy a computer you can then purchase and install software. Does a suplier have the right to access, modify or remove information from ym computer without my knowledge and consent? No. That's what virus writers do; that's what people phishing for your personal details do.

      Amazon are putting themselves in the same camp be removing a book retrospectively. If they agreed to sell it, they are at fault. If they didn't check its status, they are at fault.

      I realise the situation's not quite that black and white, but I object to people messing remotely with computer devices; and by extension that would apply to a Kindle or to my address list on my mobile phone.

      Amazon tried to redress a business wrong by doing something which is certainly morally wrong, probably legally. And I don't mean suing for loss of service I mean they may have infringed data protection laws directly.
      dgrainge
  • RE: Ridiculous lawsuit against Amazon

    People seem to get in an uproar about big government, but it
    seems pretty clear that companies are not willing to police
    themselves and protect consumers rights. We need
    regulators to step in and protect us from large companies
    who have deep pockets that they use to keep consumers
    powerless against any reasonable recourse in situations like
    this.
    Nard Dog
    • Finally someone gets it....

      People come with all this talk about small government but fail to realize that then you'll be run by big corporations. I'd rather have a person that I could vote out of office running things then a person that will only listen if I can afford to buy enough stock.

      Somebody is going to run things either way people and you can rest assured that its not going to be you.
      storm14k
      • wow, that's ridiculous

        If you don't buy from Amazon they have no power over you. Period. It is your decision.

        If a business wants power over you they have to buy/bribe a politician. There is no other way to force you to buy their product or service. Period.

        Btw, you CAN (mostly) run your own life as long as your willing to extend that courtesy to others.
        terrilian
        • Do you really believe that?

          Do you really think you are independent of society and the corporations in them? Governments fight wars at the behest of companies. Right now you cant prevent yourself from eating genetically modified food unless you grow enough heirloom seeds in an air tight bubble to feed yourself, which of course you cant.

          Think... Learn...
          bernalillo
      • You are so right.

        People that complain about big government do so until they need their government to protect their rights. They don't want to pay taxes but it is the gov't. that those taxes support that makes sure they have a right to make the profits that are being taxed.

        Corporations will totally run over the consumer without gov't regulations.
        bjbrock
  • RE: Ridiculous lawsuit against Amazon

    Chris,

    You ignore another part of the terms of use of the Kindle that asserts that once a user pays for content they have the right "to keep a permanent copy" and to view, use, and display it "an unlimited number of times..." Having your copy of a book disappear without warning doesn't sound like a "permanent" copy that one can use an "unlimited" number of times. Even users who read and understood the terms of use of the Kindle should not have expected this ridiculous action by Amazon.

    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.
    brianwc
  • RE: Ridiculous lawsuit against Amazon

    I think if I want a book I will go to the Public Library and get it FOR FREE. As long as Amazon thinks it continues to own a book, even after I have paid for it, is as long as I WON'T BUY ANYTHING
    guygo
  • RE: Ridiculous lawsuit against Amazon

    If I want a book I will go get it at the Public Library, FOR FREE!
    As long as Amazon says it still owns a book, even after I paid for it, is as long as I WILL NOT BUY ANYTHING from them. You don't like their position? No problem, boycott their store!
    guygo
  • RE: Ridiculous lawsuit against Amazon

    lame..
    zdnetatom123
  • RE: Ridiculous lawsuit against Amazon

    I think the guy that wrote this article is retarded. A company cannot just do whatever it wants with something that you buy. The laws need to be changed apparently. I hope this kid wins the lawsuit and make Amazon change their policy. Isn't it ironic that it was the book 1984 and corporations are trying to do whatever they want with a product that YOU bought...ironic indeed...
    jared_t_@...
    • Do you think that first sentence was necessary?

      You could have made your point without a personal attack. In the end it labels you and not the person you attack.
      Economister
  • RE: Ridiculous lawsuit against Amazon

    Amazon has lost its soul. Fortunately, other booksellers
    have built functional online presence. Amazon is no
    longer the ultimate bookstore. Go directly to publisher's
    site(s) and purchase books there. Or borrow books from
    the library. Or buy it at your local bookstore (with 30-
    40% off coupons).
    nocommentatapple
  • RE: Ridiculous lawsuit against Amazon

    Sorry Chris, I think you're wrong. Large corporations routinely write license agreements that they KNOW won't hold up in court, knowing that most people will take them at face value or won't be willing to spend the money to sue. Like you, IANAL, but I think this guy has a chance, and it could be costly for Amazon.

    For myself, the license agreement isn't the primary issue. I won't be buying devices that allow the manufacturer or software manufacturer to modify content or functionality without my consent. No Kindle for me, ever, unless Amazon removes the ability to remove content or make it unusable. No iPhone either, since Apple seems to be able to remove purchased apps at will. I probably won't be buying any more computers with Windows on them either, since Microsoft seems to be going in this direction too. These days, most license agreements seem to say "You must agree to comply with this, and oh, by the way, we reserve the right to change this agreement anytime we want in any way we want (and you've still agreed)". With this kind of licensing posture on the part of companies like Amazon, it's not the lawsuit that's ridiculous, it's your reaction to it. Sorry.

    poquauhock