July 18, 2009

SO I LIKE MY AMAZON KINDLE, but this business of remotely deleting books you’ve already “bought” is more than a little creepy, and a warning against the dangers of moving to electronic publishing in general.

The Insta-Wife and I were arguing about this this morning. Her position is that if Amazon sold you a book it didn’t have electronic rights to, then it was actually respecting property rights — of the copyright holder — by undoing the sale and refunding your money. I see that point, but on the other hand . . . it’s just creepy. As Jack Balkin says:

With ordinary hardcover and paperback books, once you purchase a copy, you keep it, and you can pretty much do whatever you want with it, including marking it up, cutting it into parts or selling it to someone else. This is because of the combination of the first sale doctrine in copyright law and the fact that the book is a physical copy. Because it 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 when you purchase an e-book, what you really purchase is merely a license to store the an electronic copy on the Kindle’s hard drive according to end user license agreement that Amazon provides (and that you agree to when you purchase and first use the device). As a result you may not have the rights to do things with the e-book that you think you can. . . . 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.

I would like to see electronic copies treated more like physical books — you buy it, you own it — rather than like “licenses to read” that can be revoked based on fine print in things nobody ever reads. The current situation is creepy, and subject to abuse. I like my Kindle, especially for travel, but if I’d known this was coming I don’t think I’d have bought it, and at this point I’m reluctant to recommend a Kindle to others. Meanwhile, given Congress’s domination by Big Copyright interests, I don’t expect any legislative reforms in the near future.

UPDATE: Here’s more from Ars Technica:

Ars Technica has learned that this was more serious than a publisher flippantly changing course. Accusations that Amazon had caved to the powerful meanderings of a “major publisher” were far off the mark, although the cause is still unsettling. As it turns out, the books in question were being sold by Amazon despite being unauthorized copies. The works weren’t legit. It was all copywrong. In other words, Amazon was selling bad books. Hot letters. Pilfered paragraphs. . . . So why would Amazon remove the books? It appears as though Amazon’s purchasing system does this automatically. The company told Ars that they are “changing [Amazon’s] systems so that in the future we will not remove books from customers’ devices in these circumstances.”

Bravo to that, but it would have been better for Amazon to tell customers of this planned change directly, in the first place. And why was the system designed to reach out and remove books, anyway?

No word on what Amazon will do to make sure that the books offered by third parties are properly licensed. We wouldn’t be surprised to see the company rake over its third party offerings just to be safe.

If they’re smart, they’ll send a new (legit) copy of the books to the owners ASAP. But the control issues are still troubling.

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