Barely Legally

Confessions of a Moot Court Bailiff

The Great Kindle Caper

You know, if there’s one thing I love about the 22nd century, it’s the cool future technology. Tablet computers, hover cars, jetpacks, and robot butlers were all worth the wait. But our advanced society isn’t without its drawbacks. For one, I miss forests. Sure, my allergies have never been better, but they were kind of nice to look at. Oh, and being enslaved by those insectoid aliens isn’t very fun.

But the other thing I miss is books. God, do I miss books. And authors. I suppose it all started when pirates from The Amazon started giving away ebooks for free. For free! Can you imagine what that did to the global economy? Selling some worthless mortgage-backed securities is one thing, but giving away books virtually bankrupted every author, publisher, and civilized country overnight.

Oh, sure, they said there was an analog version called a “library.” They said “people have been borrowing books for free for centuries.” Instead of pointy hats and parrots with peg-legs, those pirates wore tweed jackets and called themselves “archivists.” But make no mistake: they were murderers. Book industry murderers.

A New Hope

In the beginning, there were dead trees. But then! A gizmo appeared. The Kindle seemed innocuous enough at first: publishers could sell books without having to print them. It’s, like, free profit. For an industry that funds the majority of its “buy dead trees, put ink on dead trees, truck dead trees to every Barnes & Noble in the country” business model with six books about vampires and spends that on a jillion books that won’t ever sell, that was a big deal. All of the publishing without any of the risks! Some were still reluctant to sign onto it, but most everyone came around eventually.

Only then was Amazon’s perfidy made apparent. Giddy with riches from selling books on the Kindle, they murdered books by starting their own library. Because Amazon didn’t really want to sell books, they wanted to sell treachery. Even though Amazon’s investors were understandably worried about the profitability in the treachery market, they pressed on. Or something. I dunno.

So Amazon gave away books like the fabled librarian-pirates of yore. And, well, Amazon didn’t ‘pirate’ so much as ‘bought each book from the publishers’ before letting anyone borrow it. And, well, you could actually only borrow one book a month, which is less than just about any library I’ve ever been to. And, well, there were still real libraries lending as many real books as you could fit in your grubby little backpack.

But you guys, they literally murdered the book industry with their unprecedented book pirate/librarian ways.

The Empire Strikes Back

The Authors Guild did all they could to fight off Amazon’s piratebrarians. They whined, they sobbed, and the authors’ agents even published a statement bemoaning Amazon’s invention of the library:

The agent and author community have not been consulted about this new sort of use of authors’ copyrighted material, and are unaware of how publishers plan on compensating authors for this sort of use of their books, which is unprecedented.

“Amazon’s plan has a fatal flaw! There is a small thermal exhaust port! We don’t make money when people borrow books from libraries.” But alas, the complex economic principles at work were lost as pearls among swine; nobody could follow that logic, because the library had only been invented earlier that week. It was too dang confusing.

Return of the Lawyer

In all seriousness, they do have a point. I obviously haven’t seen the contracts between Amazon and the publishers. There’s a chance that Amazon’s making more copies of the ebooks than they’re permitted to under the terms of the contract, or they’re doing things with the ebooks they’re not permitted to.

When you buy a copy of Microsoft Office, you don’t buy a copy of Microsoft Office. You’ve just licensed from Microsoft the right to make a copy of the software on your machine (installing to your hard drive) and make another copy in RAM (running the program; yes, that’s a “copy” for purposes of copyright law). You don’t own it like you’d own a painting or a book if you bought it from the author. Thanks to the first sale doctrine, you get some rights when you own something that you don’t when you just license it. For example, I can’t print ten copies of The Hunger Games and sell them on a street corner. That’s copyright infringement. I can buy a copy of The Hunger Games and sell that one copy on the street, because the first sale doctrine grants me some rights.

On a computer, since you never buy it, you never get that first sale doctrine protection. How to enforce this bizarre techno-legal nicety? Enter Digital Rights Management: software that restricts the use of other software. When you used to buy a song on iTunes, the file contained DRM that would refuse to let you play the song until you were authorized by iTunes. You didn’t “own” the song; you licensed from Apple the right to play the song on X number of iPods and X number of computers. You couldn’t sell the song, because you never owned it.

Amazon definitely doesn’t “own” the books. They don’t have the right of first sale here. It’s entirely possible that they’re taking a very liberal interpretation of the contract they signed with the publishers.

But I think it’s a stretch to say that there’s any real harm here. It’s a library. Like the regular libraries that have existed for centuries. This isn’t going to kill your damn business.

Everyone knows that self-publishing is going to kill your damn business.