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.