First thing I want to get out, Amazon hadn’t explained why they did this at the time we posted this. That we did not mention it then was a factor of us now knowing it.

Second, and more to your legal argument, is that it’s a tad more complicated. For one, there may only be one contract here, the EULA, which is certainly not void for illegal subject matter. The EULA provides for the purchase of content from the Kindle store, so there may not be new contracts formed by subsequent purchases.

Even if there are two contracts, the EULA and the contract for sale, then only the contract for sale would be void for illegal subject matter. The first contract, the EULA is valid and breached by the removal of the book from the Kindle.

A failure to obtain a license is often a exception for contracts for illegal subject matter (though, from what I understand that’s more common in a building situation than in IP). Also, if the plaintiff doesn’t know of the illegality (as was true here) then that’s an exception.

There might be some room for colorful arguments as to why performance should be compelled; but, it feels thin to me.

Good points.

I believe this means you would still have a claim for expectation or reliance damages or other theories of recovery. Could you get specific performance? Highly unlikely as it requires arbitration, but a court acting under its equitable power might imply an irrevocable license. In fact the language in Amazon’s agreement describes an irrevocable license, especially considering you paid value for it (a classic requirement of irrevocable licenses):

Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy… display such Digital Content an unlimited number of times, … Digital Content will be deemed licensed to you by Amazon under this Agreement unless otherwise expressly provided by Amazon.”

An example would be something like a contract where you agree to sell me as many canoes as I order in any given month for $500/canoe.

The contract there is illusory because I’m not actually making any promise to buy anything. This is different from a requirements contract, where the quantity isn’t stated, but there is a promise of some order a month, and there is a promise for exclusivity, that I won’t buy canoes elsewhere.

This may seem a little illusory, but were I to pay them $10 and not get anything in return, while I couldn’t sue for breach, I could still (probably) get either the money back or the book under a theory of unjust enrichment. There are also other elements in the contract, Amazon agrees to provide internet service, and the user agrees not to reverse engineer for instance.

The contract, or specific provisions, may be found to be unconscionable, but (and I’m not 100% on Washington State Contract law) unconscionability usually requires both substantive and procedural unconscionability. The substantive unconscionability would be that there are no remedies for breach, but procedural unconscionability usually has to be shown by vastly different bargaining positions, and usually some element of coercion, in that there were no other choices available to the person in the lesser position.

I promise to give you a book if you promise to pay me $10, and to not sue me if I breach.

Sounds like a pretty clear illusory promise. There must be something else to it.