E-Book Transactions: Amazon “Kindles” the Copy Ownership Debate

Abstract

The Amazon Kindle is revolutionizing the way we buy and read books. But according to Amazon, Kindle books are not sold at all. Rather, they are licensed under surprisingly aggressive terms. This may surprise Kindle users. Amazon’s promotional materials paint a very different picture of Kindle e-book transactions than its Terms of Service, which are buried online and purport to bind users automatically by a “browsewrap” agreement— meaning users are bound by its terms simply by visiting Amazon’s Web site. It is not clear whether courts will uphold Amazon’s characterization of Kindle e-book transactions as mere licenses, or instead reclassify them as sales. If the transaction is deemed a sale, Kindle e-books would trigger the protection of the copyright “first sale” doctrine, allowing e-book owners to lend, trade, and resell them. This Note surveys the legal landscape surrounding digital content transactions, including copyright law, case law, and the Uniform Commercial Code, and argues that Kindle e-book transactions should be characterized as sales. This Paper also presents possible ways to make sales of e-books viable, using Digital Rights Management to enforce single-copy ownership. Books are important and lasting cultural contributions, a fundamental vehicle of free thought. While licensing may make sense for software or other short-lived digital content, courts should protect our ownership interest in books—which brings with it the right to share, sell, and pass on—whether digitally displayed or otherwise.