Future Imperfect

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Category: Computer Law, Intellectual Property Law
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Urban FactoryA couple of weeks ago Amazon remotely deleted two e-books off of its customers’ Kindle readers—and in one of those too-good-to-be-true moments, the books were “1984” and “Animal Farm” by George Orwell. Ars Technica and the New York Times explain what happened; the Times ran a follow-up story today. Commentary on the incident has ranged from the fervid to the apocalyptic. (An exception is Chicago’s Randy Picker.)  Jack Balkin argues that “Amazon threatens many of the basic freedoms to read we have come to expect in a physical world;” Jonathan Zittrain worries that “tethered appliances” like the Kindle “are gifts to regulators,” who will exercise a “line-item veto” over passages in books they don’t like; Farhad Manjoo at Slate concludes that “Now we know what the future of book banning looks like.”

What I find intriguing about these responses is that they are all based on analogizing Kindle e-books to physical books located in your house. 

It’s often argued that copyright disputes are primarily, perhaps entirely, due to the fact that large media companies refuse to admit it’s a changed world out there; they just need to adapt. But I think controversies like the one over the Kindle indicate that this problem is universal. Everyone is calibrating their rights by looking backwards; no one likes the future.

David Pogue at the New York Times summed up the conceptual landscape nicely:

As one of my readers noted, it’s like Barnes & Noble sneaking into our homes in the middle of the night, taking some books that we’ve been reading off our nightstands, and leaving us a check on the coffee table.

Jack Balkin adopts this perspective as well. Balkin notes that “[f]or centuries, . . . 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.” Among other things, “[b]ecause [an ordinary book] is a physical copy, nobody would think that the publisher of the book would have the rights to enter your house and remove the book.” But “Amazon’s Kindle system upends all of these expectations.”

If Kindle ebooks are basically the same as physical books, then destroying them would seem to violate core expectations we have about retailers and books. But why is that the right analogy? Why aren’t they like websites? If Amazon was providing access to “1984” on its servers instead of on the Kindle, and suddenly without warning deleted them off the servers, it is doubtful there would be much of any controversy here. That’s true even if the access was supposed to be permanent and was in return for payment of a one-time fee. The only issue would be Amazon’s abruptness in canceling access without sufficient warning to anyone who had taken notes that might be deleted. (Let me be clear: if I was one of those users, I’d be extremely annoyed at how Amazon handles copyright clearance problems.)

The core difference between a website and a Kindle ebook is where we think the object is located. We think of the Kindle as like a book, located in the device in our hands. We think of the website as being located on the server. But this just begs the question: we think of the Kindle as the same as a book because we think of the Kindle as the same as a book. In fact, copies of the information in both cases is located in multiple places: on the Kindle, and on Amazon’s servers; on the web servers, and a temporary cache on the user’s own computer. Physical location is not by itself determinative any more.

Many of the commentators on the Kindle issue have darkly noted the threat ebooks pose to the first-sale doctrine in copyright law—the right of purchasers of a copy of a work to resell that copy without permission from the copyright owner. Works like Kindle ebooks or video games that are tethered to a particular user can’t be sold without the permission of the tethering service.  But the idea that the first sale doctrine is important right worth saving in the first place may be another example of reflexively viewing the future in terms of the past. First sale makes sense in a world of physical books and copies–how else are you going to clear your house of junk you don’t need if you can’t sell it? Even throwing it away could be viewed as a transfer of ownership, and therefore a distribution. Requiring clearances for such sales impinges upon personal space with pointless transaction costs.

But not only is first sale harder with tethered digital works, it’s not clear what the point is. If you’re worried about hard drive space, you can just delete it. The only thing supporting first sale in such a situation is the fact that users have had first sale rights for time immemorial.

Balkin, Zittrain, Pogue’s readers, large media companies, legislators, and others are therefore correct: the networked digital world threatens to upend everything we take for granted about creative expression in the physical world. No one has a monopoly on surprise.

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7 Responses to “Future Imperfect”

  1. Tom Kamenick Says:

    I spend some time in video game forums (I used to work in video game retail, and still play occasionally) and this discussion about digital media has come up quite frequently. The same issues present in that field: the publisher’s right to delete it and recompense you, the inability to resale it (unless you sell the machine it’s been downloaded to along with every other downloaded item you have), how that will affect retailers who have much higher profit margins on used games, the preference for having something physical to hold, and whether or not digital media will ever completely or substantially supplant traditional media.

    Always an interesting discussion.

  2. You make a very persuasive point, Bruce, about the problems with imposing traditional values on fundamentally new practices. What may be especially troubling about remotely deleting e-books is the notion of a contract that permits unilateral rescission at any time by one (and only one) of the parties. The problem, in other words, may be one better understood as resolved by contract principles rather than property principles.

  3. Both good points. Tom, the recent trend with games has been to use online authentication as a sort of anti-piracy measure; for some games, like those downloaded from Valve’s Steam service, that requires a single check and then the game can be played offline. But EA has (controversially) decided to require an online connection for Command & Conquer 4 every time the game is played, which means it won’t be playable on airplanes, or when your connection is down.

    Mike, the issue of Amazon’s contractual terms has actually arisen in this case. I haven’t read it, but there’s been some comment on other blogs that Amazon’s terms for the Kindle didn’t actually let it delete ebooks that had been paid for. Re: unilateral rescission, I’m reminded of the recent case from the 9th Circuit saying that a contract that allows unilateral modification with no notice by only one side is illusory. Unilateral rescission might be subject to the same objection.

  4. Andrew Golden Says:

    Forgive me if I’m oversimplifying matters, but was there really any other way for Amazon to act? As I understand it, these two books were uploaded by third-parties who had not properly obtained the copyright holders’ permission. Hence, the costs that would have been incurred by Amazon if the actual copyright holders found out what had happened — and, frankly, I doubt it would have been hard to find out — and sued are far greater than the costs Amazon incurred by pulling the e-books and refunding the money to the purchasers.

    If they had refused to give refunds, then I could see being annoyed. But while there is a certain unsettling quality to Amazon swooping in and taking the digital media back, the fact remains that the purchasers didn’t have the right to have it in the first place. To give an analogous example: if Bob stole Jim’s TV and sold it to me, and I had no idea that it wasn’t Bob’s TV to sell, the police wouldn’t say, upon tracking the TV down, “Well, this is Jim’s TV, but you bought it fair-and-square from Bob, so we won’t take it from you.” They wouldn’t arrest me for receiving stolen property (since I had no idea it was stolen), but I sincerely doubt they would let me keep it.

  5. Sean Horkheimer Says:

    Cheers to proper usage of “begs the question.” You have restored my faith in bloggers.

  6. Andrew, your take seems similar to Randy Picker’s position, linked in the post above. You might be right that ex post there is little else Amazon could do — although it’s not clear to me why they couldn’t have warned users of the problem before deleting. But ex ante I’m sure there’s more Amazon could do to prevent these problems, even if it’s just a stronger indemnity agreement with suppliers.

  7. Andrew Golden Says:

    But ex ante I’m sure there’s more Amazon could do to prevent these problems, even if it’s just a stronger indemnity agreement with suppliers.

    I completely agree with you on that, though I also suspect that, given the mea culpas Jeffrey Bezos has been giving since this all happened, we’re likely to see a shift in the way Amazon accepts third-party submissions for the Kindle, assuming they accept them at all in the future.

    Still, I almost feel like there’s something missing from the story; they HAD to have said something to their customers when they refunded them their money, correct? I could have sworn I remembered reading somewhere that they explained why they were doing it.

    (Though, even if I’m right about the above point, the majority of the people who are up in arms about this seem to be doing so for reasons that wouldn’t have changed even if Amazon had given ample advance notice of the removal.)

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