Amazon has turned on the Kindle book lending program, which allows book owner to “lend” books to anyone with an email address and a Kindle (or a Kindle app for another device). The conditions are that the loan offer email must be accepted within seven days. Once accepted, the loan lasts for 14 days. Presently only Kindle users resident in the US can initiate the loan. Residents of other countries can accept a loan provided the book is available on the Kindle in their country of residence.
Personally I have no problem with the lending feature as it stands but its birth is further evidence that Amazon’s terms and conditions aren’t worth the e-Ink they’re printed on. That is, they’re binding on a user but Amazon can change them on whim to suit itself.
As Chris Walters writes, the day before lending was turned on Amazon “quietly updated the terms and conditions for publishers who use its Digital Text Platform to publish to the Kindle Store. It added section 5.2.2, which explains how the Lending Program works.”
“Ah,” says someone at Amazon, “we want to have lending for the Kindle but our terms and conditions don’t allow it. What can we do?” He doesn’t have to scratch his beard for long. He simply opens Amazon’s terms and conditions document, bashes out a new section and hits “Publish”.
An approach that cavalier is alarming if you’re a user of the service because it means the ground can shift beneath your feet at any time. You could, for instance, find that all your titles are suddenly removed for a breach of the terms and conditions, some of which might not have been terms or conditions five minutes ago.
Under the now dry but still malleable e-Ink of section 5.2.2, authors and publishers who are on the 35% royalty scheme have the option to opt out of lending (all books are opted in by default). Authors and publishers on the 70% royalty scheme have no choice: this is just another condition of being in the 70% scheme. It’s a stark choice: accept it or scale back to 35%, losing half your revenue.
As I say, I have no problem with the lending feature as it stands but I question Amazon’s good faith. The terms and conditions were arbitrarily changed and they were changed to include all books unless the author/publisher opts out at a time when many publishers and authors would be on holiday.
This time it isn’t a big deal but what’s next? Will Amazon continue to feel free to add conditions to the 70% royalty option at will?
Yes.
Reprinted, with permission, from Steven Lewis’ Kindle Writers blog
“The conditions are that the loan offer email must be accepted within seven days. Once accepted, the loan lasts for 14 days.”
And it may only be done once per title.
“This time it isn’t a big deal but what’s next? Will Amazon continue to feel free to add conditions to the 70% royalty option at will?”
I don’t recall for sure, but wasn’t it in the terms & conditions for the 70% option to begin with that they would be adding features/conditions like this in the future?
It might have been in the original terms and conditions but my point is that it doesn’t matter whether it was or not. Tomorrow’s terms and conditions may bear no resemblance to yesterday’s terms and conditions 🙂
More seriously, I’m having trouble thinking of any commercial relationships one would enter into willingly where one party can arbitrarily and at any time change the conditions. Ipso facto it indicates an unhealthy imbalance in the relationship.
I’m not a writer, “just” a reader and ebook purchaser. This lending scheme has me thoroughly underwhelmed.
To me, you aren’t purchasing E-books from Amazon, you are renting them with too many restrictions. The rent is the same or higher as owning a paper book where I can lend it to anyone I choose for as long as I want. In fact, I can give it to them.
This is one of the biggest reasons I do not own a Kindle.
Steve
It’s hard to believe they’re implementing that default at this point (maybe they’re giving publishers time?), since Kindle owners are finding that only about 10 to 12% of their Kindle books are lendable and in most cases only the cheaper ones, though there was one exception that I read about.
Authors who have a problem with the concept of people lending their property to each other need to either get a firmer grip on the reality of life or be tossed aside where they deserve to be tossed.
If they are going to actually try to sell the concept to the public that when they are ‘buying’ the eBook, they are in fact only ‘renting’ it, and they are forbidden from lending it or sharing it … then those authors had better drop the price by 90% or get ready for the most enormous back lash form the public and a tsunami of pirating that will make the Music industry’s experience pale into insignificance.
The arrogance of it makes me shudder with contempt.
I read on a Kindle, an iPad and my iPhone. I keep backups of all eBooks I “buy”, ensuring that they cannot be ‘stolen’ back on a whim. I also share them with my son and my wife as is my right, and as and when they are interested. I am also selling four eBooks, that I bought, to a colleague next week for a coupe of euros. I have read them. I never read a book a second time and have no interest in keeping them on my system after I sell them.
Howard, it is you who don’t get it.
Imagine, if you will, that your job is controlled by a contract. One day, your boss tells you that the company has decided that part of your pay will be deducted to pay for office parties for the executives so they’ve changed your contract without your consent. If you don’t like it, get another job.
That’s how small publishers and self-published authors see this situation. It’s not about the loan but the sheer arrogance and bully tactics of Amazon against those with the least power in the situation.
And, as you know since you are on these boards so much, selling an ebook is illegal so, if you do, may the great Karmic god of the Internet send multiple viruses upon your computer.
Marilynn when authors sign up with Amazon they really ought to become familiar with whom they are dealing, rather than squealing after the fact. Authors cannot continue ad infinitum to play the babes in the wood victimisation role any longer. Amazon have made it clear for a long time that they intended to introduce facilities like this and that their conditions were subject to change. Authors have the right to withdraw their eBooks.
In addition I believe that hiding behind the ‘nasty amazon is changing the rules’ does’t cut it with me or most people when the change is simply to allow people to loan an eBook they have fully paid for to a third party, something we have been doing for centuries. It is arrogance of the highest order to try to whine about our rights as purchasers.
And selling an eBook is not in fact illegal. Just because Amazon says so does not make it so and no court is going to rule that a buyer of an eBook does not have the right of property to sell it to a buyer. If you, or any other author thinks there is mileage in this obnoxious and odious argument then look forward to long long road leading to no where.
I’m glad some authors chimed in here – their perspective is important. Howard, your tone in your replies has the sound of frustration in it – I feel the same way. I’m frustrated with the taste of what could be yet is not going to be. It seems to me whomever is pushing the ebooks now is missing the point.
I’ve been purchasing and reading e-books since around 2002. All in the Palm format using TealDoc, Ereader, and Isilo. You know how useful that is to purchase a book like “The Purpose Driven Life” and have it hyperlinked to all the notes, chapters, index, etc?! Being able to copy snippets of text to paste it into an outline like Bonsai so you can be prepared for your small group meeting?! Oh, and every couple has their own copy of the book , but my wife can share my ebook at the same time on her Palm. That sharing is better than the paper version because we can read it at the same time! The DRM scheme in general I don’t like but the Ereader DRM is better than Kindle’s.
This current craze for the coolest hardware for e-books is going to really hurt readers AND authors. The real point of how the content is handled, read, used, savored, etc. is missed.
Authors, when readers start losing the books they “purchased” due to hardware failures or not wanting / being able to use the e-reader device they are going to be very angry. At you.
Authors, when your readers purchase enough books and have downloaded enough of the free books (that they don’t read anyway), and they discover they can’t loan that book they finished to their spouse – look out.
Amazon needs to watch it themselves. They’re selling devices and raising prices on books – they are renting. Sorry, but folks feel they paid $200 for a device already so why pay $15 for an e-book? It’s the same darn thing as paper only you can flip pages, you can’t lend it, you can’t “see” it on the shelf, there is nothing unique about what you can DO with the content.
Enough, I’m going to party for the end of this year.
Happy New Year!
Steve
One only needs to look at stories that have come out in the past about how Amazon throws its weight around when dealing with suppliers…not unlike WalMart, it comes across as “our way or the highway.”
While Amazon is now a boon to independent authors with high royalty rates and great distribution, past practices lead me to believe that as soon as Amazon thinks itself securely in control of the market, it will squeeze authors for lower royalties and terms that will provide more and more power to Amazon.
After all, the contract does give them the right to change any and all conditions at any time, with virtually no warning.
@Brian/AnemicOak: “I don’t recall for sure, but wasn’t it in the terms & conditions for the 70% option to begin with that they would be adding features/conditions like this in the future?”
Apparently… yes:
http://forums.digitaltextplatform.com/dtpforums/entry.jspa?externalID=393
“ix. Any new feature incorporated into the Program will apply to all Digital Books distributed under the 70% Option even if we make the feature optional for other Digital Books.”
So basically, people are complaining that Amazon implemented a new feature and automatically applied it to the 70% option, even though the terms and conditions state that new features will automatically apply to the 70% option, even if the new feature is optional for content not under the 70% option.
@Bill Smith “past practices lead me to believe that as soon as Amazon thinks itself securely in control of the market, it will squeeze authors for lower royalties and terms that will provide more and more power to Amazon.”
Which practices would those be, exactly? I’m not doubting you, it’s just that nothing comes to mind for me and I’m hoping you can refresh my memory or educate me on something I don’t know.
brooksse and Brian/AnemicOak
Exactly. I read that passage as a non-author at the time, so was surprised to see that an angry author at this point apparently didn’t note it before agreeing to release a Kindle book via Amazon at the 70% option.
As an author, and not an angry one, I can see various sides to this.
I don’t think, however, that a comparison between lending ebooks and lending printed books is valid. I sympathise with the view that you have “bought” something and it is your “property” but that not being the case isn’t something that is new. When we bought music on LP it wasn’t ours to copy onto tape and give to our friends. When we buy a DVD, we can’t play it in our restaurant for our customers or charge people to come to our house to watch it.
When you buy a CD or a DVD do you feel any less “ownership” of it because there are certain things you can’t do?
As a lover of books, I absolutely think you should be able to share your copy the way you’ve always been able to share printed books. But you must see surely that without any restrictions at all it will be a matter of moments before social networks spring up allowing complete strangers to “borrow” books from each other.
It’s one thing for @Howard to share a book with his son or his wife and another thing altogether for him to share it with a total stranger on the other side of the world, a stranger to whom there’s no way Howard would have lent a printed book at any time over the “centuries”. That’s not a right that it’s reasonable to ask an author or a publisher to grant you when they sell you the book.
There are many things we “own” but do not have unbridled rights to do with as we please. I have given the DVD and CD examples already. Another example, in my home countries at least, would be property: you can’t in Australia or England modify your house without planning permission. If your house is old it might be heritage listed, putting even more considerations into play if you want to make changes. It’s still my house but not mine to dispose of as I wish.
I hope readers will understand that the author of a book they enjoy enough to want to share must be able to make a living from what he’s doing. Sharing ebooks in a way that readers were never able to do with print books will not allow that.
If, on the other hand, Howard is right and his angry mob of readers prevail, their victory will be short lived. What are they going to read next?
Steve and Steven, you wrote more eloquently than I and I recognise that. Steve I am both angry and frustrated at the astonishing view that some authors and publishers seem to be adopting.
Starting with the ludicrous idea that eBooks are rented and not bought [which is odd considering I click on the “BUY” button when I purchase]. And then continuing to reach out into my home and tell me what I can or cannot do with my property for which they have been paid.
Steven I take issue with you in some of your interpretations. When I had an LP (of which I had many) I was free to lend them to friends and family, and indeed to anyone I chose on the planet. You start talking about copying, but the issue of copying has not been in question here. The question is one of lending, or loaning and not copying. I also suggest your comparison with house ownership is also off the mark as we are not talking about modifying the eBook. I can lend my house to anyone I wish. I can house swap with people in the US or in China. It is my property to do with as I wish, in it’s present state.
Saying that, you correctly point out that the change over to electronic media brings with it certain problems. The ability to make easy copies being at the core of those problems. But that is not the fault of the reader/buyer ! That is the natural result of a change of media and that change has been chosen by the authors/publishers/eRetailers. They don’t get to change the long standing rights of ownership simply because they are now using a new medium that comes with a major downside from THEIR viewpoint.
I believe in authors. I have tried to become a published author myself. I support appropriate royalties for authors. I support the free market. I oppose commercial copying and I oppose piracy. But Authors-publishers-eretailers cannot have it both ways. They need to adapt to the new world and the new way of working and figure out how to make it work – not reach out and change the world to suit them.
If they follow the path they are following, the result with be a LOT of angry people like me and a backlash against all of their positions. When these two additional ludicrous positions are added to the fall out of DRM, the over pricing and the geo restrictions I suggest to the industry that major trouble is ahead.
You point out a valid fact that publishers have a choice to publish in e-format or p-format. They have chosen e-format themselves to (presumably) reach a wider audience and then complain of the fallout inherent in their own choice. The solution is simple enough — if you are afraid of pirating, don’t publish e-format. BUT…
On the other hand, I do emphasize with publishers to some degree because it only takes one illicit copy to spread to near-infinity — historically not a problem with p-format. Yes, you can loan a p-book to many relatives, and then take it to a library where it may be read dozens of times. So where the potential of the “free loan” is minimized by the physical durability of the p-format (assuming the book is not subject to an OCR scan which it now is), there is no potential limit to an e-copy. Enforcement of copyright infringement or outright theft is nearly impossible or cost-prohibitive (especially with international legal issues), but because of the ability to digitize a p-format, that argument loses much of its effect.
Piracy is the fear. We must live with it and refuse to support it. I suspect that readers, unlike the juvenile/adolescent music industry, are far less likely to abuse the ethical standards of fairness and respect for the rights of authors.
Very good discussion folks! I think the two sides of authors and buyers have pretty well aired their frustrations and concerns. The one side not heard from is the publishers / booksellers (not sure if they are the same entity now ).
Let’s “get real” about some things:
Steven, you are correct that I am allowed to make to backup copy of my LP’s and CD’s but not for resale – not sure the giving a copy to someone else is covered by that – but the fact is, I do.
Howard; You do give your books away and even resell e-books. Yet I think you realize the concern the authors have of this new media that can so easily be pirated and shared with huge numbers of people.
A thought; because this new media allows the possibility of easy shareing of books, a corresponding media such as this of shareing comments can fuel the fears of the new media whether they are valid or not.
That said, I’d like us to share thoughts about what we would like to see in e-books that would make them more compelling to purchase.
Here’s some of my ideas:
1. Have books published in a common format that is not device specific. This would greatly help people purchase e-books with confidence that they will always be able to read the books.
2. Publish e-books as their own type – not as a similar form of paper. Make those footnote, indexes, chapters, bookmarks, etc. as hyperlinks. Make it easy to interact with the e-book.
3. DRM; I am trying to be realistic here. There has to be something but it needs to be forever. Example, a few years ago I looked into the fictionwise.com lending library for my church. It would have been great but as in item 1 it was limited to Mobipocket books. Glad we didn’t since Amazon is shutting down that service.
Steve
A family of field mice are hungry, and the only real source of food is inside a local house filled with traps and poison. Do they starve, or do they venture into the house?
Amazon and a few other sites are that house, and the mice are the self-published authors and small press.
The publishers and some of the smarter authors know the dangers of working with Amazon, but they hope for the best because they’ve discovered that the other sites and the publisher websites sell almost no books or much less than where the crowd hangs out. Few can survive without the Amazons and Fictionwises in this market.
My publishers chose to take the risk of selling their books at Amazon so I am stuck with the results of being sold by a predatory bookseller who only cares about its bottom line to the point that it deliberately destroys its producers with everything from the buy used button beside the new paper book which gives no profit to the publisher and author to the ruthless disregard of the producers’ rights by changing their contracts.
I refuse to buy from Amazon, and I urge readers to find more author/publisher friendly venues, but I am but a small voice who tries to educate those who will listen and not enough do.
The only real hope publishing has to survive in any viable form is that the playing field starts to become much more even so that publishers and self-published authors can tell Amazon where they can shove it and move to better venues.
Readers also need to know that Amazon is not their friend. If Amazon gains a monopoly on ebooks, they will start raising the prices because they can on the books of publishers who have survived their tactics. That’s what monopolies do.
Seven L –
I am a member of an online paperback swapping club that lets me send to (or receive from) complete strangers all over the country, strangers “to whom there’s no way [I] would have lent a printed book at any time over the ‘centuries’”. Just as technological advancements have allowed for this perfectly legal practice so, too, might similar advancements allow for swapping ebooks with strangers far away. As long as the number of ebook swaps is controlled by DRM, why should it matter where the sharers live? Especially if the alternative is thousands of pirated copies floating around on the ‘net with no regulation? I would think authors would prefer the former if it helps cut down on the latter.
@Steven: “Howard; You do give your books away and even resell e-books. Yet I think you realize the concern the authors have of this new media that can so easily be pirated and shared with huge numbers of people.”
IMO, the concern isn’t really about piracy. Or it shouldn’t be. Even if publishers abandoned the ebook industry tomorrow and offered only paper books for sale, piracy would *not* go away and would more likely increase. I’d be willing to bet that the most pirated books are ones not otherwise available in ebook format (e.g., Harry Potter books). Since DRM has no real impact on piracy, the real concern must be the casual sharing of files between friends, which has the potential of being exponentially greater than sharing a single paper copy of a book with friends. As a reader, I can understand an author’s concerns, and for that reason I view DRM as a necessary evil. Allowing readers to lend a book one time to one other person for a two-week period is one way to make DRM less burdensome on consumers who are used to sharing paper copies, while still affording publishers and authors the “protection” of DRM.
“Publish e-books as their own type – not as a similar form of paper.”
I have mixed thoughts about this. What price-point should be used for the ebook type? And when should the ebook version be released? $13 to $15 for an ebook is not so bad when sold simultaneously with a hardback selling at $25 or $30. But when sold at that price along with a book that was only ever offered as a $7.99 paperback, not so great. By now, people who normally bought hardbacks are used to ebooks being available when the hardback is released. But as a person who normally bought mass market paperbacks, I sure don’t want to pay $13 to $15 dollars for an ebook where the highest priced hard copy is $7.99. I personally don’t mind waiting for an ebook to be released along with a paperback if it means the ebook is priced similar to the paperback, but someone who buys “hardback” ebooks might not agree.
I wonder if it would be helpful, Howard, if you could say what exactly you think authors and publishers should be happy with. You mentioned sharing copies with your wife and son but haven’t spelled out exactly what you want to be allowed to do with an ebook because you own it.
With a physical book you can’t read it if you’ve lent it to your wife and you can’t lend it to someone else until she’s finished with it. With an ebook you could lend all of China a copy simultaneously.
Do you support any limitation, e.g. a limitation on ebooks so you can do only as much as you could have done with their physical equivalent? Or must publishers and authors accept that you, as the owner of the book, can do anything with it that is possible because of its electronic format?
On piracy, there is a heck of a lot of nonsense out there about it, and most of it is “blame the victim” justifications–the book isn’t available in ebook format, it isn’t in the right digital format for whatever reader a person uses, it has DRM, it’s too expensive, it’s not available world-wide, etc., etc.
As someone who has watched the numbers and listened to various horror stories and justifications over the last ten years, here’s what I’ve learned. A book is pirated by popularity whatever the form it has. Many of the most pirated books have been available as ebooks, and some without DRM, etc.
Books that offer everything the pirates say they want in an ebook from a cheap price to no DRM and English world-availability are pirated.
To put all the pirate justifications to rest as anything remotely resembling being just, here’s a story of how pirates behave. Friends of mine donated stories to a charity anthology. All the profit went to a Haitian children’s charity for the earthquake victims. The book was cheaply available in paper and every possible ebook format without DRM with world-English formats available.
Pirates uploaded it everywhere, and it was downloaded tens of thousands of times. Every copy had a front page where the reader was told every penny went to help those kids so no one did this in ignorance.
How sleazy is that to steal from a children’s charity, and is there any remote justification for doing it? It sure makes all the “blame the victim” b.s. more obvious for what it is.
On buying and reselling ebooks, I won’t bother to try to correct Howard in his beliefs because they have never changed despite a number of us offering direct quotes from copyright laws and the “small print” offered by Amazon, etc., about the fact you are leasing an ebook when you hit the buy button, and that you aren’t allowed to resell, break the DRM, or give away copies of the ebook.
For those naive enough to believe him, but smart enough to want the truth, you can find general articles on copyright and links to the original laws, etc., on my blog here:
http://mbyerly.blogspot.com/search/label/copyright
I recommend the reader’s guide to copyright and the article of “The First Sale Doctrine” and ebooks.
@Marilynn:
“Books that offer everything the pirates say they want in an ebook from a cheap price to no DRM and English world-availability are pirated.” True, but I bet not nearly as often as those that don’t offer any of those things. Being flexible with price, DRM and availability helped the music industry knock back piracy quite a bit – yes, there are still some pirates who do it just because they can, like the jerks who pirated the kids’ book you mentioned, but that’s not ALL pirates. If new options made a difference for the music industry, surely there are alternatives, like sharing, that can help with ebooks, too. I just don’t understand the attitude that if trying something new won’t stop *all* pirates, it therefore shouldn’t be tried as a way to stop some of them.
I will leave DRM on my eBook ‘purchases’ as long as I can still read them with the reader I purchased for that purpose. If and when Amazon/B&N/Borders/Adobe, etc. fails to continue to support their embedded protection, or if and when they change hardware which is not backwards compatible with the reader I purchased to read their eBooks, then I will strip the DRM and archive the material. I see no reason otherwise to do so except for cross-platform transfers when the eBook is not available in my required eFormat. This is a unique product problem, as, obviously paper and print does not become obsolete except for the nature of the contents itself.
@Marilyn Byerly: “Imagine, if you will, that your job is controlled by a contract. One day, your boss tells you that the company has decided that part of your pay will be deducted to pay for office parties for the executives so they’ve changed your contract without your consent. If you don’t like it, get another job.”
As an independent contractor, I had my rate cut within 3 months of signing a new agreement. Granted, it was related to the economy, but I still didn’t like it. Because it happened so quickly after the contract was signed, I suspected the company entered into the agreement knowing across-the-board rate cuts were a possibility but did not share that information with me. But a reduction in rate was still better than the full rate times zero billable hours, so I stopped complaining and just dealt with it.
Regarding the lending option, as I understand it, everyone except those on the 70% option can opt out. And when Amazon implemented the 70% option, they stated in the agreement: “ix. Any new feature incorporated into the Program will apply to all Digital Books distributed under the 70% Option even if we make the feature optional for other Digital Books.” This should have clued authors and small publishers into two things: (1) the 70% option has no choice regarding new features, and (2) “even if we make the feature optional” implies that some new features will not be optional for anyone at any level.
So, unless you’re implying that Amazon recently added the part about new features automatically applying to the 70% option, your analogy is not quite accurate. It would be more accurate to say that you were offered a contract and given a choice: You can be paid at a rate of x. Or you can be paid at a rate of 2x, but at 2x you do not have the right to opt out of any new policies implemented in the future, even if those on other rate plans are given the option of opting out of a new policy. (No mention or promise was made that new policies would be mutually advantageous.)
Marilynn yet again propagates the false situation about copyright:
” .. the fact you are leasing an ebook when you hit the buy button, and that you aren’t allowed to resell, break the DRM, or give away copies of the ebook.”
Please state the US Saw stating any of these facts you make above except giving away ‘copies’ of an eBook rather than the interpretation that Authors and publishers are choosing to make. Anyone ?
And for the moment I am referring only to the US because several of you appear to think that discussions on Teleread only refer to the USA, which is not the case.
I am particularly interested in the law that refers to leasing of books when I click on BUY. I would really like to read that one.
What Marilynn does appear to grasp is that a seller of a product cannot just slap a list of any old conditions on the buyer according to their own choosing – and then have a court enforce them. The law does not work that way.
In addition, the mere fact that Amazon labels the button as BUY and not LEASE cancels out any conditions in it’s conditions of sale that claim the sale is a lease, even if those conditions were valid. I find it hard to believe that anyone could be naive enough to believe this stuff. I really do. And if this belief is shared among the wider publishing community then I despair of their commercial skills.
mldavis2 – if you want to gamble on your ability to access your own property and hope that you find out about the company going bust in time to work on the DRM then that is your prerogative. I am not that optimistic.
Amanda – excellent post.
Steven – Thanks for your post. Firstly let me say that authors and publishers have lived and prospered for a century on a model where pBooks have been sold second hand in bookshops all across the world. They have lived and prospered for a century on a model where individuals in families and social groups have borrowed and lent pBooks to each other on a regular basis. So let’s not pretend that lending and sharing is a new concept justifying the hysterical response we witness form some authors.
Secondly I am totally satisfied that piracy is a hundredth or even less in scale than the Music and Publishing industry is claiming. All of their claims over recent decades have been discredited as being incompetent and misleading and inaccurate. Yet those industries continue to flog the same fictional piracy numbers.
Thirdly I also personally believe that the demographics of book readers and hence eBook readers is completely different than that of the music downloaders who made such a splash with their prodigious downloads in the 1990’s. The demographics of book readers convinces me that the overwhelming and vast majority of them (projected into the next 5, 10 and 20 years) are the kinds of people who have a) no interest in b) no knowledge of the know-how required c) little will to carry through the act of downloading and loading pirated copies of eBooks. If they are charged a reasonable price for eBooks they will happily buy not just one copy but additional copies for gifts rather than lending or giving them away or selling them. What WILL motivate them to get involved in the above acts is being charged excessive prices and being prevented from reading their fully paid for eBooks on any device they wish at any time they wish.
So dealing with your question I will come to it from a different angle. And I also ask you to remember that your last paragraph already applies to MP3 music files and the sales of music is buoyant with no provable significant impact from downloading.
Authors and Publishers need to deal with the reality of life instead of trying to change the world to suit them. It is a waste of time and energy and a distraction from doing what they should be doing – creating business models that work.
The future is one where files will always be copyable. This is the reality of life and nothing – nothing – will change that. Not DRM, not dongles and not the law. What authors and publishers need to do is what is belatedly happening in the music business; pricing the product at a price that the public feel is fair and affordable and therefore removing their feeling of resentment and the resulting motivation to download pirated copies. What is left then is an inevitable fringe group that will copy and pirate no matter what price and no matter what is done because their interest is simply in pirating. Reasonable laws and reasonable enforcement of commercially based pirating will keep that fringe to a level that is not commercially significant. Of course there will always be authors and publishers who try to take advantage of false claims about the level of piracy and the impact it has on their precious and special book. The rest of us need to keep our minds on reality and on dealing with things as they really are rather than on a fantasy world.
In closing I would suggest that someone take a serious look at the proposed operation of eLibraries as discussed here on many occasions. I have looked at this in detail in a few posts hereabout to which no one has responded and I believe that the model as set out by those supporting widespread eLibraries is far more of a threat to eBook sales than ANY piracy. In my comments I have, I believe, demonstrated that eLibraries are a completely unworkable model in the world of eBooks.
Steve A.l
Fictionwise is owned by Barnes and Noble, not Amazon…
Howard,
From Fictionwise: “Am I allowed to email an eBook to a friend?
Sorry, that is not allowed by law. These stories are copyrighted. If you email a file to a friend, you are making a copy of it. You would be committing a crime. The file is licensed to you and you alone. It’s not like a physical book that you can loan to a friend. When you purchase and download an eBook from Fictionwise.com, you alone are authorized to read it. You can download it onto multiple devices, for example a Palm and also your home PC. That’s allowed by your personal license. But you cannot send copies to any other person. Besides being illegal, making an unauthorized copy of a work deprives the author of their fair royalty, and makes it harder for us to acquire more content in the future. If we catch a violator, we will prosecute him or her to the fullest extent of the law, which can include heavy fines and even imprisonment. So please don’t do it. We charge reasonable prices, don’t steal from us and our authors. ” (From http://www.fictionwise.com/help/eBook_FAQ.htm )
From Amazon’s website:
“Use of Digital Content. Upon your download of Digital Content and payment of any applicable fees (including applicable taxes), the Content Provider grants you a non-exclusive right to view, use, and display such Digital Content an unlimited number of times, solely on the Kindle or a Reading Application or as otherwise permitted as part of the Service, solely on the number of Kindles or Other Devices specified in the Kindle Store, and solely for your personal, non-commercial use. Unless otherwise specified, Digital Content is licensed, not sold, to you by the Content Provider. The Content Provider may post additional terms for Digital Content in the Kindle Store. Those terms will also apply, but this Agreement will govern in the event of a conflict. Some Digital Content, such as Periodicals, may not be available to you through Reading Applications.”
(From http://www.amazon.com/gp/help/customer/display.html/ref=hp_rel_topic?ie=UTF8&nodeId=200506200 )
From a US Government document:
“First Sale Doctrine refers to the right of a buyer of a material object in which a copyrighted work is embodied to resell or transfer the object itself. Ownership of copyright is distinct from ownership of the material object. Section 109 of the Copyright Act permits the owner of a particular copy or phonorecord lawfully made under the Copyright Law to sell or otherwise dispose of possession of that copy or phonorecord without the authority of the copyright owner.
Commonly referred to as the “first sale doctrine,” this provision permits such activities as the sale of used books. The first sale doctrine is subject to limitations that permit a copyright owner to prevent the unauthorized commercial rental of computer programs and sound recordings.” US Government Publication 04-8copyright. (From http://www.cendi.gov/publications/04-8copyright.html )
Sure, this does not mention ebooks specifically, but they are in the same category as sound recordings.
I don’t have time now to track down a specific quote on ebooks within the American government laws, but I will if you insist.
I am an American writing under American copyright laws so I am not that conversant in European law, but I did find this paper on English and European copyright laws regarding digital documents and music from the law school at Harvard. The discussion starts on page 56.
http://cyber.law.harvard.edu/media/uploads/81/iTunesWhitePaper0604.pdf
Of particular value in this discussion is this paragraph on page 61:
“Against this background, it can be concluded that neither European Law nor the laws of EU-member states if in compliance with the EUCD provide an exhaustion principle applicable to transmission of digital works over the Internet. Consequently, online media services such as the iTMS are unlikely to face digital first sale ìclaimsî from users governed by European law. Further, the discussion of European contract law illustrates that any (potential) right to resell or lend downloaded songs might be excluded via contractual agreements as long as EU and national laws are respected. Moreover, strong arguments exist that, for instance, the iTMS service could restrict particular user practices via technical protection measures such as FairPlay as effectively as it does under U.S. law, because the EUCD contains provisions that prohibit circumventions in the same way as the DMCA does.”
If this does not satisfy you as to my points, you cannot be satisfied.
I despise Capcha. Some of the sample words are impossible to decipher, and, if I get it wrong, my comment disappears into thin air without even a second chance.
If I had the presence of mind to make a copy of my comments and try again, it tells me that my comments have already been posted even though they haven’t so I’m blocked out.
Anyway, this is my attempt to fool the damn software before I paste my comments here. I have also added a few extra paragraph breaks to the quoted material for the same reason.
Howard,
From Fictionwise:
“Am I allowed to email an eBook to a friend?
Sorry, that is not allowed by law. These stories are copyrighted. If you email a file to a friend, you are making a copy of it. You would be committing a crime. The file is licensed to you and you alone. It’s not like a physical book that you can loan to a friend. When you purchase and download an eBook from Fictionwise.com, you alone are authorized to read it. You can download it onto multiple devices, for example a Palm and also your home PC. That’s allowed by your personal license. But you cannot send copies to any other person. Besides being illegal, making an unauthorized copy of a work deprives the author of their fair royalty, and makes it harder for us to acquire more content in the future. If we catch a violator, we will prosecute him or her to the fullest extent of the law, which can include heavy fines and even imprisonment. So please don’t do it. We charge reasonable prices, don’t steal from us and our authors. ” (From http://www.fictionwise.com/help/eBook_FAQ.htm )
From Amazon’s website:
“Use of Digital Content. Upon your download of Digital Content and payment of any applicable fees (including applicable taxes), the Content Provider grants you a non-exclusive right to view, use, and display such Digital Content an unlimited number of times, solely on the Kindle or a Reading Application or as otherwise permitted as part of the Service, solely on the number of Kindles or Other Devices specified in the Kindle Store, and solely for your personal, non-commercial use.
Unless otherwise specified, Digital Content is licensed, not sold, to you by the Content Provider. The Content Provider may post additional terms for Digital Content in the Kindle Store. Those terms will also apply, but this Agreement will govern in the event of a conflict. Some Digital Content, such as Periodicals, may not be available to you through Reading Applications.”
(From http://www.amazon.com/gp/help/customer/display.html/ref=hp_rel_topic?ie=UTF8&nodeId=200506200 )
From US Government document “US Government Publication 04-8copyright:”
“First Sale Doctrine refers to the right of a buyer of a material object in which a copyrighted work is embodied to resell or transfer the object itself. Ownership of copyright is distinct from ownership of the material object. Section 109 of the Copyright Act permits the owner of a particular copy or phonorecord lawfully made under the Copyright Law to sell or otherwise dispose of possession of that copy or phonorecord without the authority of the copyright owner.
Commonly referred to as the “first sale doctrine,” this provision permits such activities as the sale of used books. The first sale doctrine is subject to limitations that permit a copyright owner to prevent the unauthorized commercial rental of computer programs and sound recordings.” (From http://www.cendi.gov/publications/04-8copyright.html )
Sure, this does not mention ebooks specifically, but they are in the same category as sound recordings.
I don’t have time now to track down a specific quote on ebooks within the American government laws, but I will if you insist.
I am an American writing under American copyright laws so I am not that conversant in European law, but I did find this paper on English and European copyright laws regarding digital documents and music from the law school at Harvard. The discussion starts on page 56.
http://cyber.law.harvard.edu/media/uploads/81/iTunesWhitePaper0604.pdf
Of particular value in this discussion is this paragraph on page 61:
“Against this background, it can be concluded that neither European Law nor the laws of EU-member states if in compliance with the EUCD provide an exhaustion principle applicable to transmission of digital works over the Internet.
Consequently, online media services such as the iTMS are unlikely to face digital first sale ìclaimsî from users governed by European law. Further, the discussion of European contract law illustrates that any (potential) right to resell or lend downloaded songs might be excluded via contractual agreements as long as EU and national laws are respected.
Moreover, strong arguments exist that, for instance, the iTMS service could restrict particular user practices via technical protection measures such as FairPlay as effectively as it does under U.S. law, because the EUCD contains provisions that prohibit circumventions in the same way as the DMCA does.”
If this does not satisfy you as to my points, you cannot be satisfied.
Howard, your refusal to answer a straight and simple question is disappointing.
Certainly people might pirate less if products were cheaper, just as there would be less shoplifting if things were cheaper. It’s preposterous, however, to suggest that copyright owners need to lower their prices to what people who have no idea what they cost to make consider “reasonable”. Everything would be cheaper if the consumer could simply walk into the store and say, “Make this cheaper or I will steal it.”
I’m reminded weekly, mostly in my role as a ghostwriter, that the book buying public has no idea what it costs to make a book, electronic or otherwise, so is in no position to have a view on what’s a reasonable price. It has, as it has with any product, only the information to decide whether it wants to pay the price set or not.
If I want to sell an ebook for a million dollars, that’s my right. It’s your right not to buy it, it’s no one’s right to steal it. I appreciate you’ve spoken against piracy and are arguing that this is just the “real world” but it doesn’t mean that anyone who stands up to pirates is an idiot.
Your glib assertion that authors and publishers have always prospered is pure sophistry. The “starving artist” is no myth. Tom Cruise makes a lot of money but would you be imagining a life of prosperity for your son if he decided to take up acting?
You have argued forcefully that Amazon should be allowed to do whatever it likes with its terms and conditions because it told us that it would do whatever it liked with its terms and conditions. We should not be “squealing” about it, you said. We have, you point out, the “right to withdraw [our] ebooks” (at least until Amazon changes its terms and conditions about that, of course).
I’m risking only rhetorical questions this time: Doesn’t this cut both ways? The views of some authors and publishers make you “shudder with contempt”. You think we are robbing you of your rights by selling you something under conditions (just like the owners of those reasonably priced MP3s do).
These were the conditions when you bought the books so are you not squealing after the fact, yourself? In my opinion, you are squealing the loudest of anyone here. For example, you said it’s an “obnoxious and odious” argument that you should be expected to abide by the conditions you agreed to when you bought your ebooks.
It seems terms and conditions, Howard, are one thing when they apply to other people and quite another when you’ve agreed to them yourself but don’t like them.
If we don’t like Amazon’s conditions, you say we have the right to withdraw. If you don’t like ours, best you stop agreeing to them and instead take your own advice, withdraw your patronage and return to the printed word where your rights are different and in keeping with your world view.
As Marilynn says in one of her excellent comments on this thread, we have to deal with Amazon because it controls over 70% of the market for our product. You’re luckier than us, the world is your oyster so it seems odd that you are putting yourself through this grief.
Unless, of course, ebooks give you something printed books don’t.
Marilynn – I find your response to be a load of legal boloney, speculation and innuendo. Not one single law stating that lending is illegal or that amazon’s sales are indeed leases. You can chose to live in never never land. I chose not to.
Steven Lewis – your response is disingenuous and inaccurate. I answered your question fully. That you are not satisfied is not my responsibility.
I am not going to get sucked into a juvenile argument about conditions of sale. You appear to be one of those who think they hold some weight. They don’t. I have not complained once about Amazon and I don’t intend to. I know my rights. Your attempt to deflect leaves a lot to be desired.
As far as Amazon is concerned they control 70% of the market because authors allowed them to do so without considering the consequences. Authors need to wake up.
You also appear to have a lot of contempt for the ordinary person. They are fully aware of the cost of producing a book. It is quite easy to figure out. They can also figure out quite easily the cost of producing an eBook and they know when they are being ripped off.
There appears to be an enormous reality gap between the rest of the world and a group of hysterical authors who seem to be unable to grasp the fact that the world does not always play by the nice fair rules we would all like it to. And instead of learning to adapt and succeed, they prefer to ramble on and on, bemoaning their sad situation, thinking that if they moan and moan loud enough then the world will change. It’s not going to happen and all they succeed doing is giving everyone a headache.
File pirating is here to stay. People base their behaviour or how they feel they are being treated. If they feel they are being exploited they will exploit you back. It’s a kind of natural justice and it is actually an excellent natural control against exploitation that the new electronic world is bringing to the masses. I didn’t invent it. I don’t support piracy. But I do understand it and I do believe that it is only a problem for people of small minds and no ideas who cannot or are unwilling to figure out how to minimise it’s impact.
Howard, I can only ask you to reflect on your latest idea that there is a natural justice in people stealing based on how they “feel” they are being treated. I did not know we were not discussing terms, conditions or reality but a world in which people can trump contracts and law with “natural justice” based on their feelings. If I had known that, I would have realised sooner that rational discussion was futile.
The futility is added to by your omniscience. Even as a professional writer I couldn’t work out the cost of every book in existence. Yes, I could have a stab at guessing the print and distribution costs, which is all I can imagine you’re talking about. How could you possibly price the time of every author on every subject?That you have hit immediately on production costs, not the most important cost, the cost of the writer and his time, says more about you and your relationship to literature than you probably intended.
Marilynn, I think we have done all that we can. I’m out 🙂
Howard, you are a piece of work.
I give you explanations in laymen’s language, and you call me a liar and tell me to prove it with the laws and legal statements from vendors. I do so, and now you blame me for making it hard to understand direct quotes from the laws.
I suggest you reread the laws, legal explanations, and license information I provided above, and you will see that I did answer your questions quite thoroughly with the proper attribution.
That you choose not to believe what the law says because it doesn’t suit you is just sad. Good luck with using “the law according to how Howard feels” defense if you ever get tangled up in legal problems.
@Steven – “If I want to sell an ebook for a million dollars, that’s my right. It’s your right not to buy it, it’s no one’s right to steal it.”
Absolutely true. Yet people are pirating ebooks, anyway. An author can be proactive, reactive or a bit of both on piracy, and it seems from the many blogs I read that the vast majority are only being reactive. As is their right. But that doesn’t seem, to me, to be accomplishing much. My feeling is that being more proactive would make a bigger difference in this fight. But if authors equate any sort of change from the status quo to a concession to pirates, then all I can say is I hope they’re happy with the results the reactive route gets them.
@Amanda, I’m sure we’re all open to ideas but the only idea I’ve seen put forward in this thread is that we make our books so cheap most people wouldn’t bother pirating them. The problem is that it quickly stops being worth writing them, especially for those of us who don’t have huge audiences.
It’s very easy to say “change, change” but I haven’t seen any constructive suggestions so far.
Correct Andrys. I didn’t format my post very well – what I was saying is Amazon is shutting down Mobipocket formatted books.
>Andrys says:
>January 2, 2011 at 11:08 am
>Steve A.l
>Fictionwise is owned by Barnes and Noble, not Amazon…
“Boy, Howdy!” Did the pot every get stirred up… Cool. Hopefully when the dust has settled and tempers have cooled everyone can take a step back and look at the opposing opinions here. Opinions is what is being thrown around here.
No one knows how much pirating has helped or hurt the music industry, let alone the book industry. Individually, maybe an author can tell but for the whole, no. Too much hyperbole.
For all concerned and interested parties, the publishing / writing industry is changing. Selling and distributing books is changing. Now. How much is REAL as opposed to PERCEIVED I have no idea. All I know is from my own little world. Last night by church small group met. We chose a new book. Majority want paper, some want ebook. Will the ratio change soon? Don’t know.
Readers; face it, we used to be able to give, share, lend, copy, whatever a paper book because it was just one to one. Legal? Who cares – no one tracked it. Now, it’s different. When we send an ebook without DRM to someone else that is not where it does / can end.
So, what are WE going to do about it?
Steve
The argument that stealing is “natural justice” has stayed with me from this thread. I wrote a post on my own blog recently about what pirates can teach us about setting ebook prices and included a video skewering the idea that justice of any kind comes into the picture here.
Seeing as I am so flattered at being mentioned several times in Steven’s blog entry I posted the following in reply today:
“A pretty good post all in all. Speaking as the ‘Howard’ in question I am only a little disappointed, still, that Steven writes about the downloading behaviour in such a slightly holier than thou way. My comments on Teleread and elsewhere targeted by Steven are hardly unique or special.
Refusing to accept that human behaviour is not robotic and driven by strict adherence to rules and laws and regulations is a little naive. Everyone has tendencies to break rules when they feel them to be unfair. The degree that they do is usually determined by the degree of perceived unfairness, the strength of peer pressure, the effort required and the chances of getting caught.
The vagaries of life have conspired to bring about a situation with electronic media such as MP3s and eBooks where the last three of the four factors are extremely low.
This is not something I invented. It is not something pirates invented. It is human nature and those who chose to pontificate more than cogitate, and who chose to believe they can change human nature rather than adapt and use human nature to their benefit are always destined to be on the losing side of history.
I welcome your conclusions Steven. I hope writers and agents and publishers and retailers follow. The truth, as I see it, is that there is enormous potential for growing the publishing industry and of expanding sales and royalties by adapting to the world instead of fighting it. Of course like every stage of evolution in nature, there are winners and there are losers. But that is the nature of change.
In closing I would suggest to Steven that it is slightly unfair to claim that I say stealing is ‘reasonable’. I have never said that. I have said there is a “certain natural justice about pirating and downloading”. I believe there is a world of difference. But seeing as the article closes in a pleasant and generous way I won’t press it home …. ;)”