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More on Amazon's Deleting Books from Customers' Kindles:

It now appears that Amazon deleted a particular edition of 1984 from customers' Kindles because the edition was infringing:

An Amazon spokesman, Drew Herdener, said in an e-mail message that the books were added to the Kindle store by a company that did not have rights to them, using a self-service function. "When we were notified of this by the rights holder, we removed the illegal copies from our systems and from customers' devices, and refunded customers," he said.

Does that make the deletion of the books proper? I don't think so.

1. It's true that Amazon might well have been infringing copyright by distributing the books, even though it was doing so unwittingly. (I don't think it would be immune from liability under 17 U.S.C. § 512, but I don't want to get into the details of that now.) It certainly had an obligation to remove the material from its own site once it learned that it was infringing.

2. It's also true that, under U.S. law, even reading an infringing book on one's electronic reader might be an infringement. That's not true for traditional books; if you read at home a book that turns out to be infringing, you're not an infringer. If you sell it or give it away to someone, you probably are, but just reading it doesn't implicate any of the copyright owner's exclusive rights. But when you read an electronic book, you are necessarily making copies of the book inside your computer system, and onto your computer screen, and those copies are often present there for periods of longer than transitory duration. That likely means that you're infringing the copyright owner's exclusive right to make copies. (By authorizing the sale of an electronic version, the copyright owner is implicitly or expressly licensing people to do the electronic copying involved in reading authorized copies; but here there was no such initial authorization.) So unless the home reading is a "fair use," even of an infringing copy, the user might be infringing copyright by reading the electronic book on a Kindle in the U.S.

3. But that's a "might be." Perhaps the user can win on a fair use defense; perhaps courts might conclude that online reading of an electronic book on one's own Kindle should be treated legally the same as the reading of a physical book; the matter is not settled.

And it's only if the reading takes place in the U.S. In other countries, the law might be different, and reading an electronic book might be as noninfringing as is reading a paper book. What's more, it has been said that Orwell's works are in the public domain in some other countries, including Canada and Australia. (I haven't investigated this closely myself, but see here and here for such claims.) So reading the Orwell work on your Kindle in Canada might well not be infringing, unless there's some added text in that work, for instance someone's Introduction, that is not yet in the public domain.

4. And on top of that, even if your reading the work on your Kindle might be an infringement, that's your infringement. Amazon at that point is not legally responsible for your infringement (though it was for the original infringement in the sale of the book). It thus can't defend itself on the grounds that the law requires it to take this step, in order to stop its own infringement — deleting your copy wouldn't have stopped its own infringement, but at most might have prevented an infringement by someone else (its customers), or mitigated the harm caused by Amazon's original infringement. And as I mentioned, the actions that the deletion was preventing might not even have been infringing.

5. Nor does it seem to me that Amazon can defend itself on the grounds that it was exercising its contractual rights to delete infringing material. As I read its Kindle License Agreement, it has not reserved any such rights. Rather, it says (emphasis added), "Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use."

Even if Amazon had reserved such a right under its contract, I think that would have been something that many readers would have found quite troubling, especially given that the reservation of this right would have been unexpected, contrary to the way things are done with traditional books, and put somewhere inside an agreement that no-one reads. The contractual term might have been enforceable, but still understandably upsetting to readers. But as best I can tell, no such right was reserved; in fact, the deletion was a breach of its contract, and quite possibly a trespass on readers' Kindles.

6. On top of that, the trespass wasn't just annoying, but for some people quite damaging; some readers lost their own annotations together with the electronic book.

7. All this may have happened not as a deliberate decision to remove this book from customers' Kindles, but rather as an artifact of the way Amazon's computer system works: when a book is deleted from the central site, all downloaded copies are also apparently deleted. But if that's so, that just means there's a seriously bad design choice (or a serious bug) in the Amazon system. It hardly gets Amazon off the hook.

For these reasons, I'm pleased that Amazon has changed its policies:

Amazon effectively acknowledged that the deletions were a bad idea. "We are changing our systems so that in the future we will not remove books from customers' devices in these circumstances," Mr. Herdener said.

Related Posts (on one page):

  1. (Hypothetical) Removal of Libelous Books from Customers' Kindles?
  2. More on Amazon's Deleting Books from Customers' Kindles:
  3. Orwellian?
thrill:
Amazon effectively acknowledged that the deletions were a bad idea. "We are changing our systems so that in the future we will not remove books from customers' devices in these circumstances," Mr. Herdener said.

After this act, until Amazon states "we cannot remove content from a customer's device", I will decline to engage in the ebook business with them.
7.19.2009 8:01pm
HS of AUS:

(I haven't investigated this closely myself, but see here and here for such claims.)


Speaking as an Australian lawyer I can tell you that in 2006 we increased our duration of copyright from 50 years pma, to be in line with your 70 years pma. However (contrary to the Sydney Morning Herald article that you link to) copyright that had already expired before 2006 was not resurected by the legislation (s 210 Copyright Act).

Because Orwell died in 1950, the copyright expired at the end of 2000 here, so it is in the public domain.
7.19.2009 8:10pm
Constant (mail):
Amazon's system involves not just distribution to Kindles but online storage. For example if you lose your Kindle you can retrieve all your purchased books from Amazon to a new Kindle. One component of this setup becomes a liability in this case: the online storage and availability for repeated download of Orwell's books. This, at the very least, has to go. And, of course, it went. That the Kindle copies also went may have been a side-effect of this necessary action, insofar as the system was not set up to treat these two components as separable.
7.19.2009 8:38pm
Gabriel McCall (mail):
But when you read an electronic book, you are necessarily making copies of the book inside your computer system, and onto your computer screen, and those copies are often present there for periods of longer than transitory duration.

According to this logic, it would be a copyright infringement to stick a book under a periscope.
7.19.2009 9:11pm
tvk:
"we will not remove books from customers' devices in these circumstances"

I for one would like to see Amazon clarify what remaining "circumstances" would justify them breaking into a customer's Kindle and deleting books.
7.19.2009 9:11pm
Sam H (mail):
After this act, until Amazon states "we cannot remove content from a customer's device", I will decline to engage in the ebook business with them.


That is how I view this issue. For Amazon to have any access to my Kindle, means I don't really own it, they do.

My car records data about my driving, but nobody can access that data without either my consent or a court order. I can live with that, but not the Amazon access to my Kindle
7.19.2009 9:41pm
Howard Gilbert (mail):
The purchase of a book for the Kindle is a "one click" operation. As a result, someone can make a mistake and accidentally order a book. The solution to this is an un-order mechanism where within a period of time after placing an order it can be canceled, the book can be deleted from your library, and you get a refund.

Amazon does not "break into" your Kindle and delete the book. It deletes the book from your personal central bookshelf. Periodically when the radio is turned on the Kindle synchronizes with the central database, downloading books that have been purchased and deleting books that have been canceled. It is the Kindle itself and not the central server that initiates the synchronization operation.

This is not particularly different from the way that a PDA or smart phone synchronizes E-Mail or calendar appointments. Right now if I have a meeting next Thursday with Joe, and he cancels the meeting, then after synchronization the meeting "disappears" from my device. This has been the way synchronization works since the first Palm Pilot in 1966. It now appears that synchronization was not the right solution for every Kindle problem.

When you purchase a book on the Kindle, an entry is made in the central database. You can download it immediately, or it will download the next time you turn the radio on. You can keep it on the Kindle, or delete it and then redownload it later on. So when Amazon discovered that a particular edition of a book violated copyright restrictions, it was not enough to simply remove it from the catalog. They had to remove it from each user's bookshelf so an infringing download could not occur in the future.

Unfortunately, as the device was now programmed, it was not possible to remove it from the user bookshelf without also triggering the Kindle to remove it from the device next synchronization. The code misinterpreted the removal as an order cancellation. In a sense it was, only the cancellation was triggered by Amazon instead of the user. The account was refunded, the book was removed from the central bookshelf, and then at the next synchronization it was removed from the device.

Because a large number of non-programmers went ballistic with paranoid delusional theories, Amazon is adding in future code some ability to do everything except the last step (refund the money, delete the book centrally, but not delete it from the Kindle itself).

Remember, at the time this problem occurred, Amazon did not have any better options. The synchronization code was already loaded into Kindles. Code update is itself a download process, but even if they created a new version of the Kindle code that did a better synchronization, there is probably no way to guarantee that if someone leaves his radio turned off most of the time to save battery (as I do) that when the radio is next turned on that the old synchronization code would not run and delete the book before the new code is downloaded.

What is important is for techno-morons and chicken little theorists to not run around imagining that this is some design point in the Kindle. This is not a feature designed into the system. Something not previously anticipated occurred, and without any good solution for addressing it the Amazon people triggered the next best available solution with some completely unintended (though after the fact predictable) consequences. This is more a study in the sociology of mass hysteria rather than a footnote in the annals of Software Engineering.
7.19.2009 9:57pm
hymie (mail):
With all due respect to the technical plausibility of Howard Gilbert's explanation, it is nevertheless irrelevant. Amazon has positioned the Kindle as just a vastly more convenient way to own books. Once a customer has purchased and received a book, Amazon must under no circumstances ever meddle with the customer's possession of that book or its content. If they cannot promise to do this, then the premise of the Kindle is a lie; you do not own the books - they are Amazon's to do with as they wish. If that is the model Amazon chooses to adopt, fine - I will continue to make do with paper. You may mock the "Chicken Littles", but one day you will go back to reread a novel and discover that Greedo shot first.
7.19.2009 10:28pm
Jon Roland (mail) (www):
There is a question of loss of copyright for want of prosecution. A few years ago we had a copy on our site of Orwell's 1984, copied from a Russian site, now orwell.ru. Got a letter from a lawyer claiming electronic publication rights. So we took off the local copy and replaced it with a link generated by doing a web search, which found many thousands of copies online all over the world. In my reply to the lawyer I pointed out that the book had been available in digital form at least since I found a copy on a computer tape of an old IBM 7090/7094 mainframe in 1965, and asked him to prove his authority for his demand. He never replied, and I began to have doubts that he really represented the copyright holder, much less whether the claim was beyond the statute of limitations, or barred by laches. If there have been unchallenged digital copies circulating since 1965, is there still a valid claim? Are there lawyers with bogus claims fishing for money they have no right to?
7.19.2009 10:57pm
Public_Defender (mail):
It looks like the license agreement is all but unenforceable against Amazon in this case because it has an arbitration clause. Of course, Amazon reserves the right to take its customers to court. Nice.

This is one example of why the law needs to put greater limits on arbitration "agreements."
7.19.2009 11:32pm
Bill Poser (mail) (www):

There is a question of loss of copyright for want of prosecution


To my knowledge there is no such thing. There is such a doctrine in trademark law, but not for copyrights.
7.19.2009 11:33pm
Bill Poser (mail) (www):

It looks like the license agreement is all but unenforceable against Amazon in this case because it has an arbitration clause. Of course, Amazon reserves the right to take its customers to court.


This is exactly the sort of license that ought to be invalid as unconscionable. I wonder if there is case law?
7.19.2009 11:36pm
Constant (mail):

there have been unchallenged digital copies circulating since 1965



Indeed there are copies of 1984 circulating. If you read the Kindle manual and you want 1984 on your kindle, then you already know what to do.
7.20.2009 12:35am
Roger Schlafly (www):
This is not a feature designed into the system. Something not previously anticipated occurred, ...
Is anybody fooled by this? Amazon certainly did design this. When you think that you are buying a book for yourself, Amazon is really secretly putting it in a personal central bookshelf where Amazon may delete it against your wishes. This was a deliberate design decision, and one that Amazon persists in continuing even in the face of this scandal.
7.20.2009 1:37am
Dilan Esper (mail) (www):
The problem is that Amazon is, like most electronic and software publishers, trying to use licenses to get around the first sale doctrine.

This has been upheld by the courts, but that doesn't mean that it is either a good idea or a correct interpretation of the law. The first sale doctrine isn't just some ideosyncratic aspect of the copyright in books-- it's what allows you to buy something and use it as you wish. In other words, it's the aspect of the law that gives you the rights that everyone thinks they have with a book, to put it on their shelf, mark it up, give it to a friend, sell it on eBay, or whatever.

If these sort of license agreements were held to be subject to the first sale doctrine, it would make this a simple case. Once Amazon sells the content, it can't mess with it downstream.

There's not a single good reason why the seller of an e-book shouldn't be bound by the first sale doctrine.
7.20.2009 2:16am
eyesay:
Dilan: "There's not a single good reason why the seller of an e-book shouldn't be bound by the first sale doctrine."

Well, suppose the seller of an e-book offers the book at multiple price levels. At full price, the user really owns the book and can sell it, transferring all rights to a third party, and removing it from the user's environment. At the middle price, the user gets a lifetime non-transferable license to the book. At the lowest price, the user gets a nontransferable license to the book that expires at some defined time such as one year after purchase. Wouldn't such a system benefit the customer by offering the possibilities of a lower-cost reading opportunities? Just asking.
7.20.2009 4:55am
fishbane (mail):
Wouldn't such a system benefit the customer by offering the possibilities of a lower-cost reading opportunities?

Perhaps. Choices are generally a good thing. Unfortunately, that's not the world in which we live. Amazon certainly could have designed a system with such a sliding scale of cost-rights, but does not appear to believe it in their interests to do so, so it appears that, absent some coercive legal change, we won't find out, at least with the Kindle.

One side benefit of the Kindle's existence is that it appears to be pushing the cost of some components of a quality ebook reader down, so hopefully we'll see a more open design from someone else soon. That leaves the significant hurdle of negotiating with the big publishers, but even absent that there's significant value in an open design that can read the many available free/Free texts available now, and smaller publishers would likely flock to such a device. (The cellular networking in the Kindle is nifty, but I don't think that much of a must-have feature, so the design wouldn't need to hassle with the carriers - even if people don't want tethered uploads, Wifi is surely fine for all but a marginial set of users.)
7.20.2009 6:49am
David Schwartz (mail):
But when you read an electronic book, you are necessarily making copies of the book inside your computer system, and onto your computer screen, and those copies are often present there for periods of longer than transitory duration.
You cannot have permission to use my car but not permission to put the key in the ignition. If you can lawfully use a work, you can lawfully do anything necessary to use the work. Otherwise, you couldn't legally color in a coloring book (you would be making a derivative work).
7.20.2009 7:28am
John321 (mail):
Looks like I will never get a Kindle. I'll be sure to tell all of my friends.

Sit on it and rotate, Amazon and Bezos!
7.20.2009 7:52am
sclem (mail):
I fail to see to see the scandal here. People "purchased" ebooks with restrictive DRM and downloaded them to devices over which Amazon has more control than they do. Then they're surprised when Amazon exercises that control. When you put a DRM-protected book on your Kindle, you're not purchasing anything. You are renting the ability to read that book for an indefinite amount of time. When Amazon goes out of business or shuts down their bookshelf server 10 years from now, or your Kindle dies, etc.... those things you "purchased" are gone. Sure, there are currently ways to move items to a replacement Kindle, but those methods are temporary and depend on Amazon's good graces.

From Amazon: "Use of Digital Content. Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use. Digital Content will be deemed licensed to you by Amazon under this Agreement unless otherwise expressly provided by Amazon."

So you get a non-exclusive right to a permanent copy that is licensed to you, but that Amazon ultimately retains control. That's not a permanent copy at all.
7.20.2009 8:10am
cmslater (mail):
Replying to "sciam",you express disdain that people are "surprised when Amazon exercises that control". I have Kindle for Iphone and purchased 1984. Last week my copy was erased, without my consent or knowledge. You bet I was surprised. Are you saying you wouldn't be?
Now that this has happened, I have begun to understand the underlying circumstances. Amazon most certainly positions the Kindle as a method of purchasing books. Nowhere do they state or even imply that they might ever erase previously purchased books.
And the manner in which they handled the deletions, and their lukewarm followup, have been disastrous.
7.20.2009 9:16am
sclem (mail):
cmslater, check your premises. You didn't purchase anything. You paid a fee to be able to read 1984 for an indeterminate amount of time on a device over which you ultimately have little control. The TOS is quite clear that Amazon can revoke your access to the service at any time for any reason or no reason at all, and considers itself in no way liable to you should that happen.

You should consider yourself lucky that Amazon refunded your money. In countless other examples where businesses have gone under or ceased to support these sorts of services, the subscribers simply lost access to everything they "purchased".
7.20.2009 9:40am
Aultimer:

Gabriel McCall (mail):

According to this logic, it would be a copyright infringement to stick a book under a periscope.

Only as far as the periscope copy is "fixed in a tangible medium of expression" for the "more than transitory" duration.

If I was Amazon's lawyer, I'd hang my hat on the "solely on the Device or as authorized by Amazon as part of the Service [defined as "wireless connectivity, provision of digital content, software and support, and other services and support that Amazon provides Device users"]. Amazon authorized only Kindles that sync with the master library (which in turn deletes infringing content). When users connected and sync'ed they consented to the deletion. See you at the confidential ADR in Seattle if you disagree.
7.20.2009 10:55am
DensityDuck (mail):
"First Sale Doctrine" is like "Mutual Assured Destruction"--it's a result of reality, not an intentional choice. It isn't possible to police every flea-market and independent bookstore and library in the country; "first sale doctrine" exists because of that fact. There's no reason that FSD should apply to Amazon's Kindle system. As sclem states, you aren't "buying a book"; you're basically renting access to it on a permanent basis.

What is happening here is not an extension of copyright. What is happening here is that a bunch of people are suddenly realizing that they're idiots who didn't pay attention to what they were getting themselves into. But apparently this is only bad when it's houses--when it's books, well, consumers [i]uber alles[/i]!

I mean, let's say that a library throws away one of its books. Is the library evil for doing this? After all, I "no longer have access" to that book, and they didn't warn me they were doing it.

People chlidishly attach value to physical objects. We need to get past this. And no, it isn't odd to think this way--unless you believe that there are giant granite blocks somewhere under Washington D.C. labeled "LIFE" "LIBERTY" and "PURSUIT OF HAPPINESS".
7.20.2009 11:34am
Losantiville:
My collection of banned books contains only a few e-books. They are mostly books that have not been issued in electronic form. Tolkien and "The Report from Iron Mountain" the latter downloaded during the time when bootleg physical copies had been suppressed by a suit from the alleged author.

Physical banned books include My Button Book (banned in 1984 by the CPSC), National Lampoon Encyclopedia Of Humor (banned for VW trademark infringement", and Penn and Teller's How to Play with Your Food (banned by the FDA because the included Kevlar sugar packet was not filled with sugar).

It is easier to keep physical banned books.

My collection ballooned by more than 1000 volumes earlier this year (at no cost to me) when the CPSC (sort of) banned all books aimed at children under the age of 13 published before 1985 (i.e. in 1984 or before). Just another stimulus payment from the Feds.
7.20.2009 11:39am
Dan Weber (www):
But if that's so, that just means there's a seriously bad design choice (or a serious bug) in the Amazon system.

Ah, Monday-morning quarterbacking. Or product design.

Designing shit is hard. Designing it to be resistant to legal mechanisms is even harder. Yes, the lawyers here feel very smug that they can think of a legal problem that Amazon's engineers didn't. Congratulations. Next time your computer crashes we'll laugh at you for not backing up all your legal documents, instead of telling you what you need to do to recover your data.

Here is a guy who is anti-Amazon and anti-DRM who tries to cut through all the bullshit. It seems no one cared when people were selling bootleg copies of Twilight and those got yanked.

Could Amazon have handled this better? Absolutely. It seems they got backed into a legal corner and there was no good choice, only bad choices in various degrees. I watch them and just feel relief that it wasn't me. And I add another item to my list of engineering watch-out-for's.
7.20.2009 11:49am
Magic Dog (mail):
What really counts here is that Amazon was able to know the contents of personal libraries, and change those contents remotely. If Amazon can know, then so can the government.

Forget about the legal analysis. It is beside the point. And forget about Amazon's non-apology apology, which also misses the point. I don't have a Kindle, but I've been watching it out of the corner of my eye, ready to buy one when the form factor became more attractive.

That interest and willingness just went out the window for me. Kindle isn't a book reader, it's a censorship device. Today, it's Amazon enforcing its idea of copyrights. Tomorrow, it could just as easily be the government enforcing some idea of propriety or patriotism.

Amazon not only has lost my interest in Kindle, but they've lost my business in physical books. Those people shouldn't be allowed anywhere near literature. They don't appreciate it, value it, or understand it.
7.20.2009 1:06pm
Magic Dog (mail):

I fail to see to see the scandal here. People "purchased" ebooks with restrictive DRM and downloaded them to devices over which Amazon has more control than they do. Then they're surprised when Amazon exercises that control.


"Scandal" might be the wrong label. "Eye opener" would be a better one. Amazon is not in the book or literature business, that's for sure. They are just one more Silicon Valley bit merchant, and no one should ever forget it. Like the other high-tech merchants who have been falling all over themselves to sell the tools of censorship and control to totalitarian governments around the world, Amazon will sell its customers down the river in a nanosecond.
7.20.2009 1:23pm
Dilan Esper (mail) (www):
There's no reason that FSD should apply to Amazon's Kindle system. As sclem states, you aren't "buying a book"; you're basically renting access to it on a permanent basis.

This begs the question in a couple of ways.

First, the First Sale Doctrine is actually a result of copyright law. It is in the statute. The decisions that have allowed parties to contract around it with respect to consumer purchases of intellectual property are incorrect, because they render the Copyright Act's provision meaningless, and the UCC section that permits click-wrap licenses of this sort of material is preempted by the Copyright Act.

Second, when you say you aren't "buying a book", that's only true if the law recognizes the validity of the license arrangement. In other words, if Congress says that amazon can't structure the transaction this way and that you are buying the book, then you are buying the book.

It advantages the seller to avoid the First Sale Doctrine if the seller can do so. But it's circular to say you aren't buying the book because the seller says that the First Sale Doctrine doesn't apply. There isn't any good policy argument as to WHY sellers (or at least sellers who don't offer an option to purchase the material outright subject to the first sale doctrine as one commenter proposed) should be exempt from the First Sale Doctrine. It happens the FSD is a very good policy and nowhere is it written that sellers of copyrighted material get to do anything they might want to.
7.20.2009 1:35pm
Magic Dog (mail):
I realize that the founder of this blog is a lawyer, and therefore that it probably attracts a bunch of other lawyers. But focusing on the details of copyright law is to miss the forest for the trees.

Amazon's system is a centrally administered tool of censorship and control. There were all kinds of ways to design Kindle, and Amazon chose the one most amenable to totalitarians of all stripes, be they greedy businessmen or power-mad governments.

It speaks volumes about Amazon, and an excessive focus on copyright law speaks volumes about lawyers. Sometimes it's the larger issue that really matters most, and this is one of those times.
7.20.2009 2:04pm
MarkP (mail):
On the policy/"eye-opener" issue, I agree with Magic Dog.

But there's still an interesting legal issue here: I don't see where Amazon reserved the right to delete copies of Content from an owner's Kindle. The language quoted above by sclem does not, in my opinion, give Amazon the right to remove content once it's purchased. To the contrary, that language indicates that I can buy content "permanently." Now, if they want to purchase it back, I'm willing to negotiate . . . .

So, unless there's some other language in the Customer Agreement that gives Amazon control over Content once it's downloaded, I bet they'll lose. Class action anyone? (Those are not forced into arbitration, now).

Mark
7.20.2009 3:21pm
shawn-non-anonymous:
Howard Gilbert:

What is important is for techno-morons and chicken little theorists to not run around imagining that this is some design point in the Kindle. This is not a feature designed into the system.


As a programmer with years and degrees behind me, I'd like to add my voice to the "techno-morons" and the "chicken little[s]." This is obviously a feature designed and coded into the Kindle. It is certainly not a bug in the code that did this. Amazon created a mechanism by which they can remove purchased books from your Kindle without requiring any interaction with the "owner". In this case, they weren't being evil about it, regardless of the uproar. But their intentions here should not put you at ease over this device, as it is basically a temporary ownership situation, no matter your own thoughts or intentions. You are purchasing the right to look at the book for as long as Amazon says you can, and you hope they let you do so for a long time.

These types of devices are becoming more common. Raise your hand if you own an iPhone or an iPod. Your cell phone, like your music player is tethered to Apple's corporate whims, whether you like it or not.

What happens when one of these companies decides they no longer want to support their devices either because they're upgrading to non-compatible services or the market isn't profitable for them? Just ask Microsoft with their now defunct MSN music service.

Most people aren't lawyers (I'm not) nor computer programmers (I am) and the distinctions here can confuse them. They buy a Kindle or an iPod and do not understand what they have really purchased as it's not clear. The concept is sold as "you buy books just like the paper ones only digital and read them on this cool device." Yet this simply isn't true as you aren't buying books (or music) at all. You own the device itself, although these companies may also disable some of the functions of that device if they so choose. You may think that when a competitor comes out with a better Kindle-like device you will be able to purchase that, transfer your e-books to it, and continue on. Instead, you will have to re-purchase all the books for the new device. (nice barrier to exit, aint it?)

Personally, I still by CD's, DVD's, and paper books. I do not use the iPhone because I think it's silly for Apple to decide what desktop operating system I have to run on my home PC to use a phone. DRM is as much a customer lock-in strategy as it is a copyright protection scheme. Amazon certainly designed this into their Kindle just as Apple did the iPhone. The unintentional deletion of the Orwell books is a result of this customer capture feature and it neatly displays the Faustian bargain people make when they buy these types of devices.

For a new and more interesting music service, the new Napster (newly purchased by Best Buy) seems to have created a good balance between consumer ownership rights, catalog subscriptions, DRM-free purchases, and DRM radio feeds.
7.20.2009 5:48pm
Dan Weber (www):
Amazon created a mechanism by which they can remove purchased books from your Kindle without requiring any interaction with the "owner".


It doesn't follow that they made this decision by design.

Let me spell out what I believe happened:

Amazon created a mechanism by which they can remove purchased books books can be "returned" from your Kindle without requiring any interaction with the "owner"


There's nothing sinister about that design.

Now, when they saw this scenario, they told someone "mark all those copied as returned."

If we want to treat this as a physical good, like a car, the rightful owner would be entirely justified in physically seizing it as a stolen copy. And then you would have neither book nor money you paid for it. You don't expect that to happen with something as cheap as a book, but the owner would still have that right.

Reclaiming the property just turns out to be a lot easier with electronic copies.
7.20.2009 6:51pm
Dilan Esper (mail) (www):
If we want to treat this as a physical good, like a car, the rightful owner would be entirely justified in physically seizing it as a stolen copy. And then you would have neither book nor money you paid for it. You don't expect that to happen with something as cheap as a book, but the owner would still have that right. Reclaiming the property just turns out to be a lot easier with electronic copies.

This argument is a nice reminder of why we need to remember that the term "intellectual property" is just an ANALOGY to property rights, that copyright is in fact quite different from a conventional property right. (Kozinski's dissent from denial of rehearing en banc in San Francisco Arts &Athletics sets this out well.)

You see, a copyright infringement is in many ways ANALOGOUS to stolen tangible property, but it is not, in fact, the same as theft. (The important difference here, but far from the only one, is that the copyright infringer does not interfere with the owner's use and enjoyment of the original, whereas the thief does, because the infringer simply copies whereas the thief misappropriates the original.)

So there's no reason why we would permit the same self-help remedies with respect to reclaiming stolen property in the world of copyrighted materials. Those remedies are designed to ensure that the owner gets back the original for his or her use and enjoyment. Copyright owners still have the use of enjoyment of the original, so there's not nearly as much urgency in recovering the copy.
7.20.2009 6:58pm
H. (mail):
I buy the ebook. I don't rent the ebook. But of course, I'm buying an (pun alert) ephemeral article. So I back it up if I want to make sure I'll have it. Buying an ebook plus backing it up equals "mine." Anything short of that is just probably mine.

I do not think I'll wait around for the law to protect my rights. I'll take care of that myself, when I can.
7.20.2009 8:27pm
Magic Dog (mail):
Amazon created a mechanism by which they can remove purchased books from your Kindle without requiring any interaction with the "owner". In this case, they weren't being evil about it, regardless of the uproar.


Oh yes they were being "evil." They designed a tool of censorship and control, and are selling it as a book reader. That's goddamned "evil" enough for me.

These types of devices are becoming more common. Raise your hand if you own an iPhone or an iPod. Your cell phone, like your music player is tethered to Apple's corporate whims, whether you like it or not.


I don't own anything Apple makes. I was never a part of their smug and overpriced computer cult, and I long ago recognized that the iPod is only tangentially related to music. Unfortunately, many young people know nothing but the iPod, and as a result will never know what music really sounds like. But that's a whole different discussion.

DRM is as much a customer lock-in strategy as it is a copyright protection scheme.


That's a secondary issue here. What really matters is that, if you use a Kindle, Amazon knows what is in your library and can alter it at any time. Such an organization doesn't belong within a million miles of a book.

But there's still an interesting legal issue here


No there isn't! There's a boring legal issue for boring lawyers, and I say that as someone who doesn't have anything against lawyers, the law, or legal issues. To the extent that you get wrapped around a tree about copyright issues, you completely miss what matters here.

Amazon has created a tool of censorship and control, and is marketing it as a book reader and eventually your personal library shelf. It is an insidious concept promoted by a bunch of amoral, evil techno-overlords without a shred of culture, ethics, or understanding of anything. Those people might sell a lot of books, but they sure as hell haven't read very many of them.
7.20.2009 8:33pm
Ursus Maritimus:

What really counts here is that Amazon was able to know the contents of personal libraries, and change those contents remotely. If Amazon can know, then so can the government.



I am confident that if the US Government floated an idea to do that, Amazon would fight it in the courts. Just like Google and Yahoo did.

I am also confident that if China did it, Amazon would naturally conduct their business in compliance with the law. Just like Google and Yahoo did.
7.21.2009 4:27am
shawn-non-anonymous:
Dilan Esper:

Let me spell out what I believe happened:

Amazon created a mechanism by which they can remove purchased books books can be "returned" from your Kindle without requiring any interaction with the "owner"

There's nothing sinister about that design.


By "owner" I meant owner of the Kindle. Amazon repossessed the book without requiring any interaction with the owner of the Kindle device they pulled it from. I maintain that messing with my files/data without my permission or even awareness of the issue is "sinister". The design makes it possible for Amazon to alter customer-purchased data without any sort of confirmation, acceptance, or acknowledgment from the customer. A book return implies the customer is doing the returning. Amazon may call it a book return feature, but it is actually a book repossession feature.
7.21.2009 10:16am
Dilan Esper (mail) (www):
shawn:

You aren't responding to me. You are responding to quoted language from someone else.
7.21.2009 1:59pm
Magic Dog (mail):
I am also confident that if China did it, Amazon would naturally conduct their business in compliance with the law. Just like Google and Yahoo did.


With Chinese law, which means that, like Google and Yahoo, and the various U.S.-based hardware companies that sell surveillance tools, Amazon would be ever so happy to assist the Chinese in tracking down people who possessed material the Chinese didn't want them to possess.
7.21.2009 6:49pm
Sam H (mail):
There was a very easy way for Amazon to have solved this issue and made everybody happy. Simply send everyone that has those offending books an email explaining the situation and asking them to delete them and download a legal copy that Amazon will provide for free. The copyright holder gets paid and the users still have their books. Since Amazon probably had to pay the owner anyway, they aren't out any more money than they are now and a lot less than this is costing them now.

Note that it doesn't matter if the user downloads the legal copy or not since the copyright holder has been paid for it.
7.23.2009 7:06am

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