Tag Archives: digital rights management

Big Brother Amazon?

kindle-parodyBy now most everyone online knows that last week Amazon deleted copies of George Orwell’s “Animal Farm” and “1984” from customers’ Kindles. They did so, they say, because Amazon was fooled by the supplier of the e-books. It turns out that they didn’t have the rights.

There is nothing explicitly stated in Amazon’s licensing agreement with customers, however, to allow it (effectively) to enter a customer’s Kindle and delete what the customer has paid for.

The Kindle License Agreement and Terms of Use, states as follows:

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.

There are no restrictions, no caveats that would hinder the conclusion that Amazon breached this clause.

That said, it should be clear that while Amazon may sell books, it does not sell e-books. It licenses software. As the Terms of Use state:

Digital Content will be deemed licensed to you by Amazon under this Agreement unless otherwise expressly provided by Amazon.

All of the Software is licensed, not sold, and such license is non-exclusive.

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.

While that latter provision is really meant to apply to the underlying work and not the the particular copy on your Kindle, it does drive the point home that the End User is nobody, at least in the opinion of Amazon’s lawyers.

The current uproar should make Amazon wary of repeating such an episode, but more importantly it raises the issues of both the value and risk of paying for digital content which a company has only licensed and to which the company has ongoing access via the electronic device on which it is stored. Think of it like going to a book store and having the clerk follow you home to stick his foot in your front door.

Numerous kinds of disputes can result in a company (or an individual) losing the right to distribute a written text or any other copyrightable property, including sound recordings, musical compositions, films and videos. Such disputes include copyright infringement, libel, fraud, misrepresentation (apparently as in the case of the Orwell e-books), negligence and contractual differences.

Due to unauthorized sampling, Warner Bros. lost the right to distribute the original version of Biz Markie’s album, “Get A Haircut.” As part of the verdict, the court ordered Warner to delete the album from its catalog and recall all extant copies from stores and distributors, as far as practicable. (Similarly, Arista was ordered to yank the original release of the Notorious B.I.G.’s “Ready To Die.”) How much better it would have been for the plaintiffs if the court could have ordered the defendants to pull every copy out of the hands of consumers!

The capability (and evident willingness) of Amazon to remove intellectual property not just from its website, but from its consumers’ devices, is a welcome gift to plaintiffs in disputes over intellectual property, since it is usually the desire of such plaintiffs to have the offending work obliterated from the face of the earth. Those who value privacy or have a less Orwellian view of how information should be controlled will understand why this is not good.

Perhaps even more chilling is the possibility that Amazon’s capabilities and policies could be exploited by the government. Amazon sells plenty of “adult” books, any number of which could be found “obscene” in some locale. It is an axiom of federal obscenity law that no one has the right to receive obscenity even for private consumption. (One needn’t even know the item is “obscene.” Under the law, one only need know that the material is “sexually oriented.”) Now an e-book is found on someone’s computer, say, in the Middle District of Georgia, or the Western District of Pennsylvania, and is declared to be “obscene” by a jury. Amazon might or might not stop offering it for sale, but it is certain that Amazon has the data of everyone who has downloaded the e-book. What happens when the government approaches Amazon and asks it to turn over information on those customers? What if the government takes an interest in who’s reading certain other kinds of books – for example, those that pertain to terrorism or radical environmentalism or animal rights – and wants to know what readers are thinking about them?

The policies are already in place for Amazon’s cooperation:

No Illegal Use and Reservation of Rights. You may not use the Device, the Service or the Digital Content for any illegal purpose.

Under federal law, it is illegal to receive obscene matter via “interstate commerce,” e.g., Amazon’s whispersynch network. Furthermore, someone who applied knowledge s/he learned in a book to committing any illegal act would be in breach of this provision.)

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.

Marking passages and highlights could be used against someone in a prosecution, at the very least to impeach his or her character.

Protection of Amazon.com and Others: We release account and other personal information when we believe release is appropriate to comply with the law; … or protect the rights, property, or safety of Amazon.com, our users, or others.

This overbroad provision speaks for itself. Amazon has reserved the right to do anything it believes is “appropriate,” whatever that means.

This article is not an attack on Amazon, but a suggestion that it take a good look at how it formulates policy, respects customers and defends privacy. In many ways, intellectual property and criminal laws lag far behind developments in digital commerce and without big and powerful companies like Amazon taking principled stands, consumers can expect more incursions into their privacy and freedom. Orwell would not be amused.

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(For more information on the Biz Markie and Notorious B.I.G. disputes, see “A Short History of Sample Clearing” on Clearance 13′-8″, Inc.’, website.

File-sharing down in the UK: It’s all in the business model

According to U.K.-based Music Ally, which describes itself as “the leading digital music business information and strategy company…since 2001,” a survey of 1000 music fans1 shows that “regular music filesharing amongst UK teenagers” has dropped by a third, and that a higher percentage are “obtaining their downloads via purchase.”

“We think the positive figures represent both greater takeup of legal streaming services among teens – in particular YouTube – and other competing ways of finding music for free such as CD burning and Bluetooth,” Music Ally’s site reports. (Currently Youtube’s offerings of majors’ songs are restricted due to a dispute between Youtube and PRS, Britains public performance rights society.)

The Guardian‘s report on the survey added this:

The research revealed that many teenagers (65%) are streaming music regularly, with more 14 to 18 year olds (31%) listening to streamed music on their computer every day compared with music fans overall (18%).

The picture may be more complex than a simple shift from filesharing to streaming, with people sharing music in new ways such as via bluetooth technology, on blogs, and through copying, also known as ripping content from friends’ MP3 devices.

But if these changes have occurred, it is easy to see why. The major record companies have spent most of their energy persecuting and prosecuting up- and downloaders. (This policy has been – temporarily? – suspended in the United States, but the majors are leaning on regulators across Europe to cut or slow down internet connections of people who download files.) Little effort was given to the task of understanding listening habits and bringing music online to reach the broadest number of consumers and listeners. A trickle of music to this or that service, and under onerous conditions to both online retailers and consumers (remember digital rights management?), was the best they could  muster.

It was this complete anti-marketing strategy which facilitated the growth of file-sharing.

In fact, what is happening is that people are discovering that streaming and buying from sites like iTunes is actually less time-consuming than illegal downloading. Even if you have a lot of time on your hands, if there is something you want, you don’t necessarily want to spend a lot of time doing it. It might seem to record executives that “everything” is readily available on sites like Pirate Bay, but this is far from the case.

Then there is the question of quality. A rip might come from a scratched CD or vinyl record (Radiohead’s Itch is an example), or be at an embarrassingly low bitrate only suitable for listening on a cheap pair of earphones (128 kbps is enough to strip out the production quality of most music), or be missing songs, or offer the songs out of order or without proper track titles so the downloader is left surfing to Amazon or allmusic to get the right information. Downloading from blogs has its own hazards, like that of malware being installed on your computer. This is all more time wasted.

And speaking of Radiohead’s Itch, why can I download this release from Pirate Bay, but not buy it from Amazon?

As the Dead Kennedys know, nothing beats convenience. The more quality downloads and streaming at competitive prices there are at the greatest number of online outlets, the more people will pay for downloads and streaming. It’s a pretty simple business model. The majors would be wise to follow it.

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1Unfortunately neither Music Ally, nor The Leading Question, its research arm, provided details as to whether responders to the survey were chosen randomly, how many declined to participate or whether participants were self-selected. Nor were any other details of the survey or its degree of reliability released on Music Ally’s or The Leading Question’s respective websites.  Caveat emptor as to any conclusions.