The day after and the hubbub is dying down. Still, a quick follow-up to yesterday’s news that Amazon E-Deleted Bought And Paid For Orwell Titles From Kindles is in order. Here then, some thoughts from the legal eagles…
Yale Law School’s Jack Balkin:
This story is a perfect example of Jonathan Zittrain’s analysis of “tethered appliances,” that is, appliances like the Kindle and the iPhone that feature a combination of hardware and software services connected by a network. The manufacturer of the tethered appliance can easily discover what consumers are doing with the product, can restrict what end-users do with the hardware, and can alert the features of the product by remote control. It simultaneously offers the possibility of privacy invasions and retroactive alterations of features. The Kindle story shows that it also offers the possibility of private censorship.
In a sense, this story is too good to be true. It is a vivid demonstration of the possible dangers of new forms of closed or tethered network services, and the way they allow companies to exercise control over end-users at a distance, without the knowledge of end users. […]
For centuries, we have understood, or rather believed, that owning books came with certain rights, including the right to keep what we purchase and to use it, mark it up, and sell it in any way we like. We were free to purchase books and keep them in our homes, without telling anybody what we were reading, or indeed, what page we had last looked at. Amazon’s Kindle system upends all of these expectations. Amazon knows what books you have on your Kindle, and, in theory, it can even know the book you are currently reading, and even the last page you’ve read on each of the books you own. It can delete books, add books, or modify books, all without your permission. It can change features of the Kindle at will. In upending our assumptions about our freedoms to read books in private and use them as we see fit, Amazon threatens many of the basic freedoms to read we have come to expect in a physical world. If we want to preserve these freedoms, we will have to reform copyright law and privacy law to control the new intermediaries who can control us at a distance.
The University of Chicago Law School’s Randy Picker:
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.
Harvard’s Harry Lewis:
For me it’s not about copyright; it’s about making the public aware of the control possibilities when creative works are transformed from physical to digital objects. A born-again Jeff Bezos unhappy about the portrayal of Jesus in some novel, or a federal executive backed up by a judicial decision that some book is obscene, could, technically, easily take it away from everyone who thought they had bought it. A PATRIOT-Act inspired investigator wondering who is reading terrorist literature could get the answer from Amazon; in the digital world there is no walking into Revolution Books and paying cash. Which of these technical possibilities would actually be legal is another question, of course — and which, legal or not, might happen without anyone checking first is another question still.
If people want books that won’t evaporate on the orders of faceless bureaucrats, if they want their libraries to last, or the right to read privately, or if they want the same ability to share or loan books that they enjoy with printed books, they should avoid buying any book that can’t be copied or any e-book reader with “remote deletion” features. Project Gutenberg has e-books that won’t disappear at midnight, like a pumpkin coach. Cory Doctorow sells e-books that will live as long as your hard drive and your backups keep them around. They’re in unrestricted formats — like plain text, HTML, or PDF — and you can read them on devices without an Amazon Big Brother on board.
Too bad Lessig takes the summer off!