The Kindle Fiasco?

The deletion yesterday by Amazon of e-books versions of George Orwell’s 1984 and Animal Farm is a shocking and depressing example of ... law enforcement? Almost all of the commentary is genuinely shocked and appalled at what Amazon has done (try here, here and here),while only Peter N. Glaskowsky at CNET focuses on the importance of copyright enforcement and understands what Amazon was doing in that framework.

The Kindle is Amazon’s e-book reader and is by far and away the leading version of what I have called mediated books. In a recent paper, I discuss the ongoing control that Amazon can exert over the Kindle and the books that it has already distributed. We saw this once before when Amazon turned off the read aloud function in the face of contentions by the Authors Guild that that impermissibly created derivative works. My focus in the paper is more on how mediated books change the advertising opportunities associated with books—actual in-book advertising—given the print-on-demand nature of e-books. Two Amazon patent applications subsequently came to light making clear that Amazon is heading down this path.

Control at a distance isn’t a new issue either. I talked about it in my 2005 paper “Rewinding Sony: The Evolving Product, Phoning Home and the Duty of Ongoing Design” which focused on exactly these issues of copyright infringement for networked products. The rule that we might apply to the Sony Betamax—a locked-down product that can’t evolve in place—might be very different from the rules that we would apply to products such as Napster and Grokster that can be designed in an ongoing fashion and that can exercise control at a distance.

Here is what seems to have happened with 1984. Amazon allows firms to upload e-books for distribution on the Kindle platform. It appears one of its publishers uploaded versions of 1984 and Animal Farm that violated American copyrights in those works. Once Amazon learned that it had distributed infringing works, it recalled those works, meaning that it reached out and deleted those books from the Kindle sitting in your house. Amazon refunded the money for those purchases and there are other e-book versions of 1984 available on the Kindle, but anyone who had annotated the pirated 1984 e-book version probably lost those annotations.

This is a question of designing remedies for copyright infringement. I have made this point in posts here before: Do we want low-cost readily enforceable versions of our laws—including the copyright laws—or do we instead prefer versions that can only be enforced through an expensive typically court-based system? High cost or low cost?

To be sure, there is something genuinely Orwellian about what Amazon has done; that is the great irony of the situation apparent to all. Amazon has announced that it won’t do this anymore, meaning I take it that it isn’t going to take copyright infringement of this sort seriously anymore. Presumably Amazon will invest more in ex-ante screening to ferret out copyright infringement and will rely less or not at all on ex-post deleting as a solution to copyright infringement.

Nonetheless, the central question of enforcement strategy remains and will become increasingly important as we move to an always-connected cloud architecture. But Amazon clearly has the ability to design a system that allows it to engage in ex-post copyright enforcement. The precise point of my 2005 paper was about the circumstances under which the legal system should take into account the ability of system builders to design in copyright enforcement in their products and making sure that they had the right incentives to do so.

Comments

[richard handelsman (Chicago M.A., 1968)]

If you want 1984 on your Kindle, use another edition. Or, as the NYT points out, "On the Internet, of course, there is no such thing as a memory hole. While the copyright on “1984” will not expire until 2044 in the United States, it has already expired in other countries, including Canada, Australia and Russia. Web sites in those countries offer digital copies of the book free to all comers." Then, transfer to Kindle (keeping a copy on your hard drive).
More Orwellian than immediately apparent. In 1984, Big Brother ostensibly collected and destroyed any embarrassing newspaper article. Physically impossible: a newspaper's daily edition sells thousands of copies. Did BB collect them all? Burn the entire paper - or just snip out that article? What about editions in hospitals, schools, doctor's waiting rooms? Replaced, or just a hole left?
The irony? That Oceania wasn't virtual, or digitized. Consequently, BB didn't have Amazon's deleting ability.

[Michael]

Your joking right!

Does Amazon have a hidden agenda or what. Is this a dramatization by Amazon if the very point that 1984 was trying to make.

Seems so blatant. Perhaps there is a copyright reason for it.

[peter]

Randy - your pieces are very interesting, but it's not merely a matter of copyright enforcement. It is also a question of the contractual obligation Amazon entered into with Kindle users. As you know, I believe that Amazon is in breach of its EULA as a result of its "retrieval" of 1984 and Animal Farm. But there's a further question: given the trivial damages, if any, resulting from this breach, the mandatory arbitration clause in the EULA effectively precludes any recovery for Kindle users and any deterrent of Amazon's further breaches.

See http://tiny.cc/n134Z

On Monday, July 27, Disputing (http://www.karlbayer.com/blog/) will publish a piece of mine regarding the emerging trend to invalidate mandatory arbitration clauses in consumer transactions in which the arbitration clause robs the consumer of any feasible means of remedying and deterring wrongful conduct as a result of arbitration's preclusion of class actions.