Don’t review this book

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22 Responses

  1. Jason,

    While I share your dislike of Amazon’s terms of use, which make electronic books much less desirable than print ones (plus I personally love print books better), I’m not sure your arguments follow. First, wouldn’t a quotation from an electronic book be fair use? Certainly an extensive excerpt might not be, but how is the Kindle license more restrictive than what one might be able to quote with a print edition of the same book?

    Second, regarding browsing, Amazon does offer for many books a “see inside the book” option, so you can look at selected pages of a book. This exists for both print and Kindle books I believe. Of course, this feature is not as nice as looking at a book in a bookstore, but it seems to me that the problem isn’t with Kindle alone, but with any online purchase of a book, physical or electronic.

    You are right in that Kindle books prevent people from lending books to others. In this way, Kindle books are more restrictive. Another limitation is that if Amazon ever stops making Kindle or goes out of business, your books might suddenly evaporate. That’s a big problem with many new products that are so tied to the existence of a particular company — you don’t really fully own what you buy. If Amazon ever went bankrupt in the future like Circuit City, people’s libraries might suddenly disappear. But that would give Amazon a great argument for a bailout.

  2. a reader says:

    Kindle users do not get to see works before purchasing them.

    I don’t think this negates your larger point, but in the interest of full accuracy, Kindle users can download the first chapter (or so) of books on Amazon for free before commiting to buy.

  3. Jason Mazzone says:

    Thank you to “a reader” for the clarification.

    Dan: The issue here is whether the fair use provision of the Copyright Act trumps the contract. Courts have given different views on whether the Copyright Act trumps state contract law. My sense is that the trend is towards enforcing contractual provisions.

  4. Jason,

    If it is enforced in contract, I guess the issue would be whether fair use is an implied term in the contract or not. Would a court interpret the license as prohibiting any quotation, however slight, of the book? Or would it interpret the license as prohibiting only excerpts that would constitute a copyright violation? I don’t know much about contract law in this area, so I can’t say for sure, but it seems to me that the most reasonable way to interpret the license is that if it doesn’t explicitly seek to alter the status quo with regard to fair use/etc. then fair use should be implied. But again, I don’t know much about contract law in this area, so I can’t say for sure.

  5. Bruce Boyden says:

    I really don’t think the slope is anywhere near that slippery. There are decisions on copyright and form contracts, but there aren’t any decisions I’m aware of that go so far as to say a form contract would validly prevent quotation for a review. There shouldn’t be any remedy under copyright law, given the express fair use exception. And under contract law, there’s a pretty good unconscionability argument. Also, a NY state trial court (stretching the law a bit IMO) held that the inclusion of a vaguely worded clause barring negative reviews in a software EULA was an unfair trade practice, so there’s possible counterclaims as well.

    On not being allowed to browse a file before downloading, it’s either an inconvenience to a large number of people or it isn’t. If it is, I would think that would hurt sales, which would cut against it becoming long-term or widespread. If it isn’t, well, then the isolated few just have to suffer. There’s no independent right to inspect a product pre-purchase.

  6. Jason Mazzone says:

    Bruce,

    It all depends on whether one thinks fair use or other activities protected by copyright law are subject to negotiation. The fact that the Copyright Act expressly provides for fair use, as a defense, doesn’t resolve that issue in a context where content is not owned but licensed. By analogy, the Copyright Act deems the first sale of a copyrighted work non-infringing but there are any number of cases enforcing contracts that prohibit licensees from transferring the digital content they have received to somebody else (as well as cases that come out the other way). It isn’t a slippery slope problem. It’s a question of whether contract law trumps.

  7. viva moffat says:

    This is an issue that is pervasive (if not significant in many individual instances): virtually every browsewrap and clickwrap contract purports to limit fair use in one way or another. Agreements that one will only make “personal use” or “noncommercial use” of a work, or agreements that the work will not be used without the author’s “express permission” are limitations on fair use. It may be with the Kindle that the courts or Congress will have to confront the question of when copyright trumps contract. (And I really think it’s a question of copyright law — how important is fair use? — rather than a question of contract law.)

  8. Bruce Boyden says:

    Jason, obviously fair use is subject to negotiation, so that doesn’t really resolve the issue here. E.g., I’ll gladly accept $1,000,000 right now from anyone who wants me to promise not to quote from any of their books in any review that I write. If I do enter into such an agreement, I would think it would be enforceable.

    The issue is whether someone who purchased an e-book with a hypothetical anti-review clause (are there any real ones, aside from Network Associates?) in a non-negotiated form agreement would be in serious jeopardy of losing a case based on quotes in an ordinary review on either a copyright or contract law theory. I don’t believe there are any cases that reach even close to that result, although as a theoretical exercise obviously you can take existing case law to an extreme, as you can in most fields. On the copyright side, Jacobsen confuses things a little, but I think by far the better view of the law is that there can’t be *infringement* liability for violating a promise not to do something expressly carved out from the scope of the copyright rights by the Copyright Act. So then it would fall to contract law. And although unconscionability is a hard defense to win, the anti-review clause in a form contract context seems like the quintessential unexpected term. (I think it would help that courts often push the threshold of what’s procedurally unconscionable based on their assessment of how substantively unconscionable the term is.) Contractual promises not to redistribute content that by design is used through making a copy, i.e. software, seem like they are in a different ballpark, at least in terms of unconscionability.

  9. A.J. Sutter says:

    Please pardon some naive questions:

    1. Isn’t there a construction issue here about the difference between what is expressly permitted and what is expressly prohibited by the contract? The “display” issue raised by Jason refers to language in the granting clause, which grants a limited right to display. Display per se isn’t mentioned in the express prohibitions, though. (Of course, it’s not possible to tell from the post whether the quoted list of prohibitions is exhaustive, though I will assume so here.) While certain kinds of display are expressly authorized, does that necessarily lead to the conclusion that all other forms of display are unauthorized, even though (i) the contract does include an express list of prohibitions, and (ii) that list does not mention, e.g., “display [or 'uses of the Digital Content'] outside the scope of the rights granted in paragraph __ above”?

    2. Turning to those prohibitions, I don’t see how a limited quote in a book review would necessarily constitute the sale, rental, leasing, sublicense or other assignment of the content. The two remaining prohibitions, against distribution and broadcast, seem to be sqarely within copyright. Wouldn’t a contract claim based on either of these particular prohibitions be pre-empted by federal law? And in that case, would the presence of such prohibitions in the contract be deemed to be a waiver of a fair use defense in the book review context?

    3. And do book reviews require a statutory fair use defense, anyway — isn’t there a First Amendment dimension to a book review?

  10. AF says:

    As I read the contract, it only covers the use of the digital content that is downloaded to the Kindle. It does not cover the copying of that content by non-digital means, eg, by manually typing an excerpt of the book into a computer.

  11. Jason Mazzone says:

    AF:

    If I manually type out the entire Stephen King’s story and post it on the internet, I have (likely) infringed the copyright. How about the license? Do you still think I haven’t violated the terms of use?

  12. AF says:

    Jason: Yes, that is how I would interpret the contract. The terms of use apply to Digial Content, defined as “digitized electronic content” that is “downloaded” and displayed” on Kindle. If you manually copy the text of a book that you downloaded, the copy is a copy for purposes of copyright law, but it is not the Digital Content covered by the terms of use.

  13. ohwilleke says:

    The pertinent cases, it would seem to me, would be the Major League sports and movie rental review cases (particularly as to materials like DVD extras). They recite a very similar terms, presumably in an effort to secure contract of adhesion terms or to prevent any implied abandonment of the rights inherent in copyright.

    I’m not aware of any case law that has every held someone liable for breach of copyright or license in connnection with a commercial review of those materials that doesn’t make extensive restatement of the original. The First Amendment would inform any license interpretation in such a case, to the extent that copyright law does not apply. It is certainly not obvious that “sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any rights to the Digital Content or any portion of it to any third party” encompasses a mere review with select quoations. Admittedly, the “any portion of it” language in the license could be succeptible to that broad reading, in the absence of the context provided by existing copyright and free speech jurisprudence. Such an extreme reading might, however, if clearly enough expressed, even be void as against public policy in the context of distribution to the general public on a commercial basis closely analogous to book sales.

    Also, keep in mind that even if a review that constitutes fair use under copyright law does breach the licensing agreement, the damages would be compensatory breach of contract damages, rather than punitive statutory copyright damages, even if the violation of the licensing agreement was an intentional efficient breach.

    Loss of sales due to a truthful review would presumably not be actionable because they would not deprive Amazon of the benefit of the bargain in the ordinary case (although different reasoning might apply to reviewer’s copies with embargoed release dates). The two most plausible damage calculations would be Amazon revenues per sale time the percentage of the material used in the review (i.e. pennies), or the actually unjust enrichment remedy disgorgement of the profits attributed to the review (probably the few hundred dollars paid to the reviewer). Those are low stakes benefits for an expensive lawsuit, and might be offset by the benefit that Amazon or the copyright holder review from free advertising (recalling the adage that all publicity is good publicity as long as you spell my name right).

    It also seems to me that Amazon is at serious risk of having their license invalidated under the First Sale doctrine of copyright law. Consumers have prevailed in similar lawsuits involving software (one of which involved an eBay resale of software by a Colorado couple).

  14. ohwilleke says:

    One more observation. The lack of an ability to preview a book is not unprecedented, even in the print world. Certain paper copy books, whose primary value is in their pictoral content, or that are reference books succeptible to loss of sales to bookstore browers who get all that they need from browsing the text are often sold in shrink wrap. For example, I’ve seen the Blue Book (the one that contains used car prices) and the DSM-IV (the classification index for mental illnesses) sold that way in book stores.

  15. Jason Mazzone says:

    Two quick responses to ohwilleke:

    (1) There are cases that refuse to enforce a waiver of first sale rights. However, there are also cases, also involving software, that uphold contractual waivers of first sale. The law is not settled.

    (2) What may happen in court is not the only relevant, or even the most important, consideration. Much behavior is shaped by the threat of litigation. Many people simply do not want to take their chances, even if they think they have a good legal defense.

  16. ohwilleke says:

    Jason,

    Your first point is a fair one.

    But, right or wrong, there are very few cases where including unenforceable contract terms in an agreement result in any sanction other than non-enforcement, and such cases where they do appear mostly involve industries subject to heavy regulation where a state or federal regulator affirmatively mandates that specific language be included (e.g. APR requirements in consumer mortgage transactions).

    For example, under Colorado law it is well settled that a contract term in a written contract prohibiting oral modification of the written contract are not enforceable unless the original agreement is governed by the statute of frauds. But, such terms are routinely included in written contracts of all types in the state, and I am not aware of any case ever sanctioning anyone for doing so.

    For that matter, even in cases where there is a criminal sanction for including an impermissible term in a contract (a number of labor law prohibitions are of this type), prosecution of those cases is extremely rare and happens only in the most sympathetic cases. Violations by uncounseled people overwhelm legal limitations. In another First Amendment sensitive area, criminal liable, many states have statutes that could be narrow enough as applied to be within the strictures of U.S. Supreme Court jurisprudence (which imposes essentially the same standards on civil and criminal libel cases), but prosecutors, judges and juries are all very reluctant to bring and to permit convictions to be entered and stand in these cases. The First Amendment is not just a “superlaw;” it is part of the American legal and popular worldview.

    Similarly, I suspect that there are a dozen cease and desist letters written and ignored for every lawsuit brought based on the grievances aired in those letters.

    Threats of litigation (the classic letter from a lawyer) are in my experience far less effective than lay people believe them to be, particularly if the underlying claim is weak or hard to prove. (Oh that I wish this were not so.)

    Of course, terms of use also have a deteurrent effect only if people read them, which empirical research has established that people overwhelmingly do not.

    As you work your way down the economic food chain, you tend to see increased disregard for contract terms, statutory law, and threats of litigation. Litigation threats may impact large, profitable counselled institutions, but the “living law” (a.k.a. informal community norms) has far more impact on behavior in the world of small enterprise and decentralized institutions like blogs and small independent newspapers. Likewise, if the “living law” considers a restriction or contract term to be fair and reasonable, parties to disputes will often agree to honor those terms, even if the law clearly establishes that they are invalid.

  17. Jason Mazzone says:

    Ohwilleke: Interesting points. Thank you for sharing them.

  18. AF says:

    Jason: On your second response to oh-willeke, I seriously doubt that a Kindle reader would refrain from publishing a book review containing excerpts from a Kindle download out of fear of litigation. I know I wouldn’t, if I were a Kindle reader. Would you?

  19. Jason Mazzone says:

    AF:

    As with most things involving IP, the answer is that it all depends. (And the publisher of the prospective review, not its author, is probably the right person to ask.)

  20. A.J. Sutter says:

    Ohwilleke, thanks for your very helpful responses to my questions.

    AF, regarding your 2009/02/09 13:50 comment and for the sake of clarity, I don’t think that downloading and display on Kindle are limiting elements of the definition of Digital Content. Here is the provision from the TOU: 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’).” I read the definition of Digital Content to begin with the words “digitized electronic content.”

    On the fear of litigation, Jason is right that it’s the review’s publisher who’s most likely to worry about the threat of litigation. Other than some self-published blogs, usually that’s not someone “far down the economic food chain,” in ohwilleke’s phrase. The author might worry, too, especially if he or she is writing for a highly visible, or corporately-owned, outlet. (I speak as a book reviewer for a widely-circulated magazine in Japan.) Not counting a handful of mega-authors like Steven King and J.K. Rowling, the likely threatener, or abetter of the threat, will be a large media conglomerate, who can muster the overwhelming legal firepower to make a case expensive to defend, even if the review publisher has the law on its side. So I think at this level in the “food chain,” intimidation might be more effective. As a reality check, publishers are usually happy for reviews, gracious about providing review copies if you can show you’re legit, and don’t attach many strings (though I usually deal with university or specialty publishers, not News Corp.).

  21. AF says:

    I will keep my eye out for evidence that the Kindle discourages book reviews.

  22. leon says:

    I would like to excerpt a reader’s review of a book to accompany an exceprt from the book itself in a press release. I have the author’s permission for the book part, but do I need Amazon’s permission for a reader’s book review? Thanks for any guidance.

    Leon