Orwellian?

I'm a big fan of the Amazon Kindle, and think that electronic book readers are the future. But behavior such as that described on David Pogue's New York Times blog can do much to alienate prospective readers:

This morning, hundreds of Amazon Kindle owners awoke to discover that books by a certain famous author had mysteriously disappeared from their e-book readers. These were books that they had bought and paid for — thought they owned.

But no, apparently the publisher changed its mind about offering an electronic edition, and apparently Amazon, whose business lives and dies by publisher happiness, caved. It electronically deleted all books by this author from people's Kindles and credited their accounts for the price....

You want to know the best part? The juicy, plump, dripping irony?

The author who was the victim of this Big Brotherish plot was none other than George Orwell. And the books were "1984" and "Animal Farm." ...

Thanks to Kevin Gerson of the UCLA Law Library for the pointer.

UPDATE: Commenter areader writes, "What are you talking about? 1984 has never been available on Kindle."

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.

(Hypothetical) Removal of Libelous Books from Customers' Kindles?

Say that someone alerts Amazon that a certain book that it is selling contains a libel — or discloses information that invades someone's privacy, or some such. And say the matter is clear, and Amazon has no doubt that the book is indeed libelous. Under traditional American libel law (which is quite constitutional under the First Amendment), Amazon would at that point be legally actionable for Amazon to continue distributing the book.

Bricks-and-mortar bookstores have in fact long been potentially liable for distributing libelous books once they learned that they were libelous, though in practice such lawsuits have been rare. It's also possible that they could even be enjoined from selling the book, once there's a final finding by a court that the book is libelous; they could certainly be sued for damages. It's possible that 47 U.S.C. § 230 would shield online bookstores from this liability rule, though it has long been applied to bricks-and-mortar bookstores. But let's assume that Congress modifies § 230 to track traditional libel law rules. Or let's say that this arises in England, or some other country that doesn't have § 230.

My question: Should it be proper for Amazon to at that point delete the libelous books from users' Kindles? Let's say that Amazon tried to add a provision to its user license agreement that would give it the contractual right to do so. Should consumers be very troubled by that? Or should they react the same way they react to the fact that if a Web site operator is alerted that some of his writings are libelous, he must change them or face the risk of liability? (That's just normal libel law.)

I would be troubled, partly because I wouldn't be at all certain that the judgments about what is and is not a libel will be made accurately. That's always a risk with any libel law system, but I would think it's even more egregious if it can affect existing copies and not just the distribution of future copies. I also would worry that the same would end up applying to books that contain alleged "hate speech," or blasphemy, or insults to political officials, or whatever else some country that has jurisdiction over Amazon might insist on. Again, the ability to change existing copies in customers' hands strikes me as materially more dangerous than just the ability to demand that people who post things online change their postings. But would I be correct?

Incidentally, what if instead of deleting the material, Amazon changed the file to include an explanation that this and that passages are false, with details about why they are false? (Of course, that would not be helpful in invasion of privacy cases, and many people who are libeled would prefer that the libels of them be entirely deleted, rather than just supplemented with correcting information.) Should we also be troubled about that, either on its own terms or because of the possibility that it would lead to broader editing? Or should we welcome it as a means of providing more information to readers, as well as mitigating in some measure the harm to the wrongly defamed?