Publishers, copyright and the tempest in the Amazon teapot

Erica Frank wrote:

[snip]

>> Nonsense. Amazon is NOT the publisher of Kindle ebooks.
> 
> I'm willing to consider you might be right. Is there a legal
> definition of "publisher?" One that separates it from "company that
> formats the book for sale?"

Black's Law Dictionary, Fifth Edition (a legacy of my days as a
practicing attorney) defines the verb "publish" as:

<blockquote>
To make public; to circulate; to make known to people in general. To
issue; to put into circulation. [definition as related to forged
instruments omitted]. An advising of the public or making known of
something to the public for a purpose.
</blockquote>

Similarly, the noun "publisher" is defined as:

<blockquote>
One who by himself or his agent makes a thing publicly known. One whose
business is the manufacture and sale of books, pamphlets, magazines,
newspapers, or other literary productions. One who publishes, especially
one who issues, or causes to be issued, from the press, and offers for
sale of circulation matter printed, engraved, or the like.
</blockquote>

Note that the foregoing definitions have no limitations as to commercial
or non-commercial publication, nor do they require that the thing
published be created or altered in any way. If you manufacture a thing,
or put it into circulation, you have published it.

On its face it would appear that Amazon is indeed a publisher of the
Kindle books it sells. There are, however, a couple of little wrinkles.

Simplifying perhaps to the point of absurdity, the /Sony/ time-shifting
decision held that making an incidental electronic copy of a television
broadcast for purposes of "time-shifting" was not really the kind of
copying envisioned by United States copyright law. So if Amazon holds on
its servers copies of electronic documents incidental to distribution
that it did not create and made no attempt to alter maybe it can be said
that it did not "manufacture, issue or cause to be issued" the document
in question. And if the document was already made publicly known by
someone else, or was circulated by someone else by the expedient of
uploading it to Amazon's servers, maybe it can be claimed that Amazon
did not make the document "publicly known."

For the record, I'm only saying that these argument could be made, not
that I find them persuasive. In fact, I'm convinced that Amazon meets
the legal definition of a publisher of the Kindle content obtained from
its servers.

I'm also convinced that Amazon's status as a publisher is completely
irrelevant. Title 17 USC 1, section 106 provides, in
pertinent part:

<blockquote>
Subject to sections 107 through 122, the owner of copyright under this
title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work...;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies ... of the copyrighted work to the public by
sale or other transfer of ownership, or by rental, lease, or lending;
</blockquote>

(Sections 107 through 122 memorialize, among other things, the doctrines
of fair use and first sale.)

The important thing to note here is that copyright infringement is not
affected by the status of the infringer, nor, apparently, by the 
knowledge of whether a work is copyrighted or not. Thus, if Amazon 
"distributed copies of the copyrighted work to the public," it was 
guilty of infringement whether or not it knew the work was copyrighted 
and whether or not it profited from the transfer. This is a concept 
known in the law as "strict liability."

(It is also interesting to note that it is copying or distributing which
constitutes infringement; generally possession of copyrighted material,
even if obtained illegitimately, is not infringement).

While strict liability can seem harsh, remember that, in the U.S. at
least, most copyright infringement is a civil violation, not a criminal
one. Thus, not only is imprisonment off the table, so are fines. The
copyright holder has to prove actual damages or accept a statutory
maximum of $30000 (or perhaps as little as $200 if the infringement is 
found to be inadvertent).

Given this context, I would say that Amazon acted in the best possible 
way to protect its own interests. Because copyright infringement is a 
strict liability law, there is no way that Amazon can escape liability. 
It can, however, mitigate damages. Should the Litigious Big Brothers 
that control the 1984 copyright sue, Amazon can reply that it has 
deleted all, or nearly all, of the offending copies, and therefore there 
are no actual damages arising from the infringement (something which is 
probably true for all electronic copies). It could further argue that 
whatever damages may have been caused by the distribution that it could 
not surreptitiously delete are offset by the number of people who would 
buy physical copies now that the metaphorical rug has been pulled out 
from under their feet.

Moreover, by acting as it has Amazon has attempted to demonstrate that 
even if the infringement was not inadvertent, it was at least not 
willful, that it has acted in "good faith" (at least towards the 
copyright holders) and therefore any statutory damages that might be 
awarded should be on the low end of the spectrum. This may also be 
important, because by willfully making the e-book "available on a 
computer network accessible to members of the public" [17 USC 5, section 
506(a)(1)(C)] Amazon would be guilty of criminal infringement and 
subject to fines and imprisonment for up to 5 years [18 USC 113 section 
2319(d)(2)].

Even if the LBBs never attempt to sue, this behavior will surely have an 
impact the next time some litigious copyright holder tries to recover 
from Amazon, as is virtually inevitable. It can always point to its 
history and say, "see, we never attempt to infringe anyone's copyright, 
and always act promptly and in good faith. If the current litigant would 
simply have told us sooner this whole affair could have been avoided."

I don't know what the cost would be to validate the copyright status of 
every e-book in the Kindle store, but I'm sure it's cheaper to just 
remove the books when challenged, than to attempt to be proactive.

Certainly Amazon has alienated a certain small percentage of its 
customers, but if you own a Kindle, there are not very many alternatives 
right now. By my calculations, from a business perspective the legal 
benefits in Amazon's actions more than counter-balance any loss of 
customer good will.

The major lesson to be learned here is to always make backup copies of 
every e-book you buy, from whatever source, and /never/ rely on on-line 
"bookshelves." If your device or your vendor does not support backups, 
find a new device.






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