I’ve been exchanging some tweets and e-mails recently on the subject of e-books and e-readers. Many people, including me, see this as a pretty exciting time in the history of the printed word, but as usual, I’ve got to find a way to feel smugly superior as I fight my stupid nerd turf wars.
But discussing this on Twitter really isn’t working for me. I’m not sure I can get all my thoughts down in 140 pages, let alone 140 characters. I find I’m oversimplifying my own thoughts, and reading meanings into messages from others that may not have been intended.
I’m still sorting out what to think about all the issues associated with e-books. Important considerations are whether we’re talking about the devices themselves or the content that’s loaded onto them. Is that content copyrighted or public domain? Is the content purchased, borrowed, or licensed? When it comes to the content, for now I’ll just say that I’m probably open to more possibilities than my sometimes militant support of Free Software might suggest. Perhaps I’ll tackle that in a future blog post.
There’s also the consideration that most of these e-readers have networking capabilities, and involve communicating with servers controlled by the e-reader supplier. Again, I understand that there will be some terms that need to be agreed on when using these capabilities.
But for this post, I’m going to concentrate not on the downloadable content or any network capabilities, but on the e-reader itself – the thing you hold in your hand. There’s all sorts of cool models on the market now – Nooks, Kindles, iPads, etc., but every one that I’ve taken a closer look at appears to require me to sign up for the same sort of “End User License Agreement” (EULA) that seems to come with so many electronic devices these days. Many people just click right through these things without a second thought, but these EULAs are contracts, and have been held by United States courts to be legally binding. I don’t enter into these contracts lightly.
But before I get into my concerns with these contracts, a question for my readers (yes, both of you): Why would you agree to them (or why have you agreed)? The terms seem pretty bad, and you’re giving up the right to do things that you’d otherwise be perfectly free to do. Why do this? Comments are enabled, I really want to hear some feedback.
Anyway, when I buy a device, I expect to be able to use it as I please, and not have to worry about whether the supplier of the device approves. Imagine the implications if Bic could decide what was OK to write with the pens we buy from them. I don’t see any reason to treat an e-reader differently. Suppliers claim the need to protect various rights under copyright law. Fine, but I’m bound by copyright law already, no additional contract terms needed. I don’t see how they have any business asking for further restrictions, and I’m reluctant to agree to any.
Every e-reader I’ve looked into has its own EULA, and each one is a little different from all the others; I won’t get into the specific problems I have with each one here. (Although it might be worth doing in a follow-up post.) What follows are some of the common problems I see come up in most of their EULAs. Some e-readers might not have every problem that I discuss below, and some have additional problems I haven’t described. I’ve paraphrased their wording, but links to a few specific EULAs can be found at the end of this post. Again, in my points below I’m only talking about terms placed on usage of the physical device – not the content you download onto it, and not the manner in which you use any network capabilities built into it. Those issues can and should be considered separately, but many EULAs fail to separate these issues, and they end up applying some or all of the following restrictions to the device itself:
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You must agree to the contract before you can use the device.
Ridiculous. When I buy a device, I intend to use it as I see fit. Again, I’m talking the physical device here, not about buying an e-book and making mass copies – that’s covered by copyright law and is illegal regardless of the contract. I’m talking about the right to use an object that I’ve purchased however I see fit. Dodge can’t take back my car if they don’t like how I drive it; I’m not granting someone that power over me by buying an e-reader from them.
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Failure to comply with any terms of the contract means you forfeit all rights under the contract.
Wait, what? If I violate one part of the contract, the entire contract is cancelled? That seems rather harsh. Keep in mind the previous point, which is that this contract is the only thing allowing you to use the device in the first place. Once the supplier decides you’ve violated any single part of the agreement, they’re within their rights to turn your e-book reader into an unusable chunk of plastic. (And if you’re e-reader has network connectivity, they probably have the means to do so.) And who determines what a violation is? That’s typically defined as being unilaterally with the supplier.
Also, they can terminate the agreement, but there’s no provision for how I can end the contract. I’m bound to its terms in perpetuity, and I have no safe way to cancel.
Lastly, I’m curious what would happen to any digital library that I’ve spent time and money building, if a supplier decides that they’re now going to exercise their option to terminate all my rights under the contract. Some of the contracts I’ve read seem to suggest that I’d lose access to all that content.
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The contract terms can be changed by the supplier at any time.
In case the contract wasn’t bad enough, they can make it worse at any time. Not all e-readers have this, and the ones that do phrase it differently, but over and over, I see variations on the theme that the supplier can change the rules whenever they please. Combine this with the ability noted above that prevents me from terminating the contract and we’ve gone from Orwellian to Kafkaesque.
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No reverse engineering the device.
These devices are already protected by various patents. Beyond those protections, reverse engineering is perfectly legal and I see no reason why I should sign a contract promising not to engage in it. Plus, since I make my living as an engineer, entering into a contract like this opens me up to potential legal liability.
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You will only use the device in compliance with the law.
First off, doesn’t the very existence of a law compel me to comply with it? Why do I need to sign a contract promising a third party that I’ll obey the law? That’s between me and a jury of my peers. Secondly, who’s law? Federal law? International law? Sharia law? Will I be in breach of contract if I use the device to display a picture of Muhammad?
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The device has no warrantee, and the supplier has no liability.
Conditions like this aren’t an automatic showstopper, but considering how much they’re asking me to give up, it seems a bit selfish that they won’t give up anything in return. They are, after all, trying to sell me something.
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Specific EULAs:
All the above assumes that the EULAs I’ve found at the following locations are the same as what I’d be agreeing to by purchasing the respective devices:
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- Nook: http://www.barnesandnoble.com/nook/legal/index.asp
- Kindle: http://www.amazon.com/gp/help/customer/display.html?nodeId=200505590
- iPad: http://images.apple.com/legal/sla/docs/iPadSoftwareLicense.pdf
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If anyone knows of a specific e-reader that avoids the concerns I’ve outlined above, I’d love to hear about it.
Some of the above terms are so bad, I’m not convinced that they’re all legally binding under contract law, but since I’m not a lawyer, I’m not very well equipped to put this to the test. If any lawyers stumble onto this article, I’d be thrilled to have some comments.
The ironic thing is that I don’t necessarily have any specific desire to do what they want to prohibit me from doing. But I have the right to do these things, and these are rights that I’m not willing to part with for the sake of a little convenience.
You might think I’m making a mountain out of a molehill here. After all, why let some arcane legal technicalities get in the way of these fun little gadgets? But more and more, these e-books will be controlling how we read and what we read. The written word and the ability to access it may be the most powerful tool at our disposal. It’s too powerful for us to sell it off so cheaply.
Club 603 