I love ebooks. Despite their unimaginative page design, monotonous fonts, curious approach to hyphenation, and clunky annotation utilities, they’re convenient and easy on my aging eyes. But I wish they didn’t come wrapped in legalese.
Whenever I read a book on my iPad, for example, I have tacitly agreed to the 15,000-word statement of terms and conditions for the iTunes store. It’s written by lawyers in language so dense and tedious it seems designed not to be read, except by other lawyers, and that’s odd, since these Terms of Service agreements (TOS) concern the use of books that are designed to be read.
But that’s OK, because Apple, the source of iBooks, and Amazon, with its similar Kindle Store, are not really publishers, not really booksellers, they’re "content providers" who function as third-party agents. And these agents seem to think that ebooks are not really books: Apple insists on calling them, not iBooks, but “iBooks Store Products,” and Amazon calls them, not Kindle books, but “Kindle Content.”
Here’s an excerpt from Apple’s iBooks agreement:
You acknowledge that you are purchasing the content made available through the iBooks Store Service (the “iBooks Store Products”) from the third-party provider of that iBooks Store Product (the “Publisher”); Apple is acting as agent for the Publisher in providing each such iBooks Store Product to you; Apple is not a party to the transaction between you and the Publisher with respect to that iBooks Store Product; and the Publisher of each iBooks Store Product reserves the right to enforce the terms of use relating to that iBooks Store Product. The Publisher of each iBooks Store Product is solely responsible for that iBooks Store Product, the content therein, any warranties to the extent that such warranties have not been disclaimed, and any claims that you or any other party may have relating to that iBooks Store Product or your use of that iBooks Store Product.
Wade through twenty-two pages of this, and Finnegans Wake will be a walk in the park, or as Apple might call it, a pedestrian experience integrating analog recreational green space. And if you get hurt in the park while reading an iBook, don't blame Apple--they're simply go-betweens who provide the product but take no responsibility for it:
IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION . . . DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. [Caps in the original]
Conventional printed books, or book books—which in the old days we simply called books—don’t require a click-to-agree before reading. Imagine if Gutenberg made his readers accept these conditions from Amazon’s Kindle Store before they could read the Bibles he printed on that first printing press, back in the 1450s (readers is an archaic term for what we call end users today):
Unless specifically indicated otherwise, you may not sell, rent, lease, distribute, broadcast, sublicense, or otherwise assign any rights to the Kindle Content or any portion of it to any third party, and you may not remove or modify any proprietary notices or labels on the Kindle Content. In addition, you may not bypass, modify, defeat, or circumvent security features that protect the Kindle Content.
I mean, try plugging that into Google translate and see what comes out.
When Amazon entices you to buy an ebook now with 1-click, you’re not really buying that book, you’re renting it. As Kindle’s TOS puts it,
Kindle Content is licensed, not sold, to you by the Content Provider.
Ebook publishers limit what you can do with their products as well. This copyright notice for Julia Angwin's Dragnet Nation, published by Macmillan, warns,
The author and publisher have provided this e-book to you for your personal use only. You may not make this e-book publicly available in any way. Copyright infringement is against the law.
What if that applied to book books as well? An analog version of Kindle’s Digital Rights Management agreement (DRM) wouldn’t let you lend your Gutenberg Bible to a friend, give it away, sell it at a garage sale, donate it to an adult literacy program, or use it to press flowers. Nor could you make it publicly available, for example, by reading it aloud during a religious service. Plus it turns out that unlike Apple, which has more money than God, Gutenberg barely made ends meet selling his Bibles, even though the few copies that survived the ravages of time are worth millions today. If Gutenberg had had the foresight to license his Bibles instead of selling them outright, his descendants and heirs would still own the rights to those first books, or as they might prefer to call them, those Analog Scriptural Piety Artifacts (aSPAs), and they’d be sitting pretty.
What if you had to click to agree before reading one of Gutenberg’s 15th-century Bibles, er, I mean, Scriptural Piety Artifacts?
Today a digital content provider can take back their ebook if you violate any of the DRM’s terms. As Amazon puts it,
Your rights under this Agreement will automatically terminate if you fail to comply with any term of this Agreement. In case of such termination, you must cease all use of the Kindle Store and the Kindle Content, and Amazon may immediately revoke your access to the Kindle Store and the Kindle Content without refund of any fees. . . . If you do not accept the terms of this Agreement, then you may not use the Kindle, any Reading Application, or the Service.
That’s not an empty threat. When Amazon discovered it had sold copies of George Orwell’s 1984 even though it didn’t own the American rights to that particular edition, it quietly and without notice removed the title from Kindles throughout the United States. That struck readers as the height of Big Brotherism, but the giant bookseller didn’t care, because like Big Brother, Amazon had the majesty of the law behind it. If Gutenberg Bibles were covered by a similar End-User Licensing Agreement (EULA) that you had to agree to by inking your initials with your goose quill before you could access its holy content, Gutenberg dot com could have your Bible repossessed if it thought you weren’t pious enough, or if you spilled coffee on it, or if you used it not to read but for hiding money or pressing flowers.
Don’t be fooled by the picture, you can’t really press flowers in an online dictionary. If Terms of Service agreements covered printed books, you couldn’t press flowers in a traditional dictionary either.
Today’s readers accept these ebook licensing agreements without a thought: despite the legal shrink wrap, ebooks are selling more and more. But if Gutenberg’s legal team had figured out a similarly creative way to limit what readers could do with analog books, I’m wondering whether readers at the time would have stuck with their parchment and their clay tablets, and the print revolution might never have taken place. After all, the vendors of ebooks aren’t selling books as physical objects, like Gutenberg and his successors did. Instead, they’re selling us the right to read. That’s more like selling us the right to vote, or think, or breathe. Gutenberg's readers wouldn't have put up with that. Today's readers shouldn't have to put up with it either.
