Amazon’s Orwellian Dilemma

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It’s been a few weeks since Amazon angered their customers by remotely deleting George Orwell’s 1984 and Animal Farm from their Kindles, but the debate regarding Amazon’s right to do so is still going strong. The pure irony that it was Orwell’s books they deleted hasn’t been lost on anyone, I mean you just can’t make this stuff up (unless you’re George Orwell, I guess). Even though Amazon has apologized and promised not to do it again, it was quite a wake-up call to realize that a corporation, at the request of publishers, has the power to remotely gain access to customers’ personal property without warning.

It’s clear that the third-party publisher, MobileReference, didn’t have the rights to sell the books in question. It seems that the confusion originated because Orwell’s books are in the public domain in Australia where, for authors that died before 1954, the law only protects the copyright for 50 years after an author’s death. However, in the US, an author’s work is protected for 95 years from the date of publication (we have Mickey Mouse and Disney’s team of lawyers to thank for that). When the actual rights-holder found out the books were being illegally sold, they contacted Amazon, who removed the books and refunded the customers’ money.

Even Kindle owners who haven’t carefully read the terms of use generally understand that an e-book is different from a regular book. Unlike a physical book, where terms of first-sale doctrine allow you to sell the book on Ebay when you’re done reading it, you can’t share or re-sell your Kindle books. It’s actually more like renting a book, rather than owning it. This isn’t news – the issue of digital rights management (DRM) putting limits on electronic content has been around for years. But I think most Kindle owners are willing to accept these restrictions for the sake of convenience. What surprised them was that Amazon had the power to remotely reach into their Kindles. Personal devices like the Kindle have become such a part of our lives that the idea of someone meddling with them feels like a violation. Unfortunately, this is only going to happen more frequently as we use more tethered devices. According to an article in the NY Times, “…devices like the Kindle, TiVo, or iPod give tech companies unprecedented control over digital media and by extension, the free exchange of ideas.”

Now we know that Amazon has the ability to delete books from the Kindle, the question is do they have the right? The Kindle license agreement doesn’t specifically mention remote deletion as a possibility. As discussed in Information Week, the Kindle license agreement gives the owner the “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.” That seems to support the anti-deletion argument, but then it goes on to say, “Amazon reserves the right to modify, suspend, or discontinue the Service at any time, and Amazon will not be liable to you should it exercise such right.” Which kind of sounds like they are saying they can do whatever they want whenever they want. Ultimately, it will be up to the courts to decide if Amazon overstepped its bounds. According to The Detroit Free Press, the first lawsuit has already been filed against Amazon. The lawyer who filed the suit, Jay Edelson, argues that, “technology companies increasingly feel that because they have the ability to access people’s personal property, they have the right to do so. That is 100% contrary to the laws of this country.”

Copyright law is important and I can understand why Amazon wanted to retrieve the illegal books. However, I think the burden is on them to ensure that they are selling legal books. It seems to me that once the problem was discovered, Amazon could have paid the royalties and any penalty to the rights-holder. Deleting the books should have been a last resort, and certainly shouldn’t have happened without first warning their customers. After days of negative publicity, Amazon apologized for their actions and has promised not to do it again. It remains to be seen if they will actually change the Kindle license agreement to guarantee this promise.

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