Do you own your kindle ebooks?

I just read this quick Wired post on whether you own your kindle ebooks.  This is what they said:

“If convenient euphemisms could somehow be outlawed, the “Buy now with 1-Click” button on Kindle pages would have to be relabeled “License now with 1-Click.” Amazon’s terms of service clearly state that, unlike those bulky slabs of arboreal matter that imparted knowledge to generations past, Kindle books can never be owned in the traditional sense. Instead, your $12.99 merely earns you the right to view the work on your Kindle. This arrangement gives Amazon the authority to snatch back that content if the company thinks you’ve been naughty—say, by copying and distributing ebooks or by engaging in fraud with your account.

Look at it from Amazon’s perspective: Part of the rationale for letting you resell old-school books is that you can do so only once—after the transaction is complete, the physical book is, by definition, no longer in your possession. That’s not necessarily the case with ebooks, which can be duplicated with ease. If Amazon grants its customers true ownership of Kindle books, it will have no quick recourse against scoundrels who resell books multiple times without deleting the original. Wiping someone’s Kindle stash is a lot easier than filing a lawsuit.

But there’s still something outrageous and infuriating about the situation. If Jeff Bezos showed up at your door and said he wanted to repossess your books, would you let him in? No, you’d unleash your hounds. And then hope that one of the dogs got ahold of his wallet.”

It’s tongue in cheek, I get that.  But with much respect to Brendan and to Wired – of which I’m a devoted reader – it’s not right.  What any provider’s Terms of Service is only part of the story.  Obviously providers prepare Terms of Service with one eye on their own interests – when I draft ToS or similar documents for clients I’m required to do that.  But I also have my other eye on what the law actually says.  And this is where it starts getting complicated.

Complicated because, as readers of this blog know from my other posts (see here and here), there is a legal battle underway in both the USA and EU about what ‘first sale’ rights consumers should have in digital content: books, films/tv, music and games content.  This is being argued out by judges and regulators, not by the digital content publishers or providers (although they have an important say).  Very basically, the EU is moving towards the proposition that digital content should be owned by consumers and capable of resale to other consumers – especially if publishers market the content as being consumers’ property in the first place.  By contrast, the position is unclear in the US, with cases like Vernor v Autodesk and ReDiGi suggesting different things.  We could end up in a situation where different countries say different things about consumer rights in ebooks or other digital content.

The point is: it’s not just the Terms of Service which will dictate this.