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Can Amazon just change the conditions of use just like that?

 
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JDL9000
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Joined: 05 Oct 2013
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PostPosted: Sat Oct 05, 2013 4:16 pm    Post subject: Can Amazon just change the conditions of use just like that? Reply with quote

Hello,

So basically I am an Amazon seller, I take all of my own photos and upload them on Amazon.

Now when I uploaded the photos I knew that if another seller wanted to sell under my listing, they are welcome to do so and its even ok if I'm using my copyrighted imaged, so no complaints there.

But what another seller can not do is, create a new listing and then steal/rip my image from my listing and use it on their own, which other sellers have been doing.

So I complain about this to Amazon, and they emailed me saying they have removed my images.

Then some more sellers start to do this and I complain to Amazon again, only this time they have emailed me this: 'Based on the information you provided in your intellectual property rights infringement complaint, we are unable to remove the listings that you cited, When you add your copyrighted image to a detail page, you grant Amazon and its affiliates a non-exclusive, worldwide, royalty-free, perpetual, irrevocable right to exercise all rights of publicity over the material'

So I check thier conditions of use page because that was NOT in there before, and oh look they've suddenly just added it.

So my question is can they just change their policies like that? because according to them every one of my photos can be used by any other seller on Amazon now, when this was not the case when I uploaded them.

Should they not have to email every seller with this update to their policies or something?

And where do I stand? Can I 'try' taking them court if they do not remove my images that other sellers are using because when I uploaded them no other seller would have been allowed to use them.

Can I take the seller directly to court or will the 'NEW' Amazon policies protect them?
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AndyJ
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Joined: 29 Jan 2010
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PostPosted: Sun Oct 06, 2013 8:41 am    Post subject: Reply with quote

Hi JDL,
When you use Amazon's services you enter into a contract with them. The terms of the contract are those set out on their site. One of the terms is number 15
Quote:
15 ALTERATIONS TO SERVICE OR AMENDMENTS TO THE CONDITIONS OF USE
We reserve the right to make changes to any Amazon Services, policies, terms and conditions including these Conditions of Use, and Service Terms at any time. You will be subject to the terms and conditions, policies and Conditions of Use in force at the time that you use the Amazon Services. If any of these Conditions of Use is deemed invalid, void, or for any reason unenforceable, that condition will be deemed severable and will not affect the validity and enforceability of any remaining condition.
which means that yes they are playing by their own rules if they decide to change the terms, and they are not obliged by their rules to notify you first. However, one of the ingredents of a fair contract is that it is entered into freely by both parties and that you have had adequate opportunity to make yourself familiar with the terms beforehand. If a party such as Amazon wishes to impose non-obvious or non typical terms to a contract they are obliged to make this clear to you, so by extension, if they bring in new terms which change your fundamental rights, then yes they are required to bring these changes to your attention before they become operative. However, I'm not sure that the particular term to which you refer (paragraph 8.2) is really non-obvious or unfair. It is in fact fairly standard on most sites, including this one, for the site owners to indemnify themselves by requiring a service user to grant them a licence in this way. To be honest I would be amazed if something similar to this was not present in the terms which applied when you first signed up to Amazon.

So what are your options. Obviously if you object to the current terms, you are free to stop using Amazon, and the rights they have claimed fall away since the contract is ended. On that basis, if you use their notification procedure to ask for any continuing use of your intellectual property by others be stopped, they should comply as this is their duty under European Directive 2000/13 (EC) (the 'eCommerce Directive') Article 14.

You could only sue Amazon if you cease to be a user and they subsequently fail to comply with your Notice. As for the postition of the other users who have appropriated your photographs, once you have ceased to be an Amazon user they have virtually no defence unless they can show that Amazon specifically authorised them to use your images under the general terms already discussed, as one of the other terms says:
Quote:

You may not extract and/or re-utilise parts of the content of any Amazon Service without our express written consent.
and if the other users are using Amazon as part of a business, the sublicence granted to users in paragraph 6
Quote:
Amazon or its content providers grant you a limited, non-exclusive, non-transferable, non-sublicensable licence to access and make personal and non-commercial use of the Amazon Services.
would not apply. The paragraph 6 licence is intended to authorise browsing the site (which involves making copies of the content on your computer) or buying another user's products, but not selling products if this would constitute commercial use.
However on either basis, I would not advise starting litigation. It would be both an expensive and long drawn out process for which the damages, if they were awarded, would be trivial.
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Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007
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