A 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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