Original URL: http://www.theregister.co.uk/2009/07/25/kindle_conundrum/

Amazon Kindle doomed to repeat Big Brother moment

How it's broke and why it can't be fixed

By Cade Metz

Posted in Media, 25th July 2009 00:10 GMT

Yes, Amazon chief Jeff Bezos has apologized for the Orwellian removal of Orwell from digital book readers tucked inside the pockets of American citizens. And yes, the new-age retailer has promised not to repeat its Big Brother moment. But that's not a promise it can promise to keep.

Last week, Bezos and company vanished all copies of both 1984 and Animal Farm from citizen Kindles after the rights holder complained those books had been sold without its permission. A third-party publisher had uploaded the digital texts to Amazon's online Kindle store, claiming - perhaps out of ignorance, perhaps not - that the titles were in the public domain.

It's no surprise that Amazon is obligated to remove pirated titles from its online store. But in rescinding the texts from the readers themselves - texts already paid for and downloaded - the web giant ventured into new territory, undermining the reasonable expectations of all those Orwell-reading Kindle owners. Amazon's terms of service say its ebooks are licensed - not sold. But its marketing boilerplate describes the Kindle as a device for "your library" and "your books." The company didn't break its user contract. But it messed with some peace of mind.

"Amazon is morally obligated to make the possibility of revocation clear to buyers," one Kindle buyer tells The Reg. "I don't know of any other product anywhere where I can take physical possession after paying in full and still have it repossessed without warning or recourse.

"Customers are accustomed to the concept of 'buying' as being permanent. And if it's not permanent, why can't I force them to refund it if I don't like the book? How come the ability to revoke the sale is unilateral, one-sided, asymmetric?"

This uneasy feeling was only exacerbated by the fact that Amazon removed the books out from under Orwell lovers without explicitly telling them it was doing so. There were refund notices sent via email, but nothing more. Many Kindlers were left to wonder why their books had disappeared - while others wondered why there was a refund.

To his credit, Jeff Bezos acknowledged that Amazon's Big Brother moment was ill-conceived. "Our 'solution' to the problem was stupid, thoughtless, and painfully out of line with our principles," read his online apology. "It is wholly self-inflicted, and we deserve the criticism we've received. We will use the scar tissue from this painful mistake to help make better decisions going forward, ones that match our mission."

But that doesn't mean this is the last time Amazon will remove books from citizen Kindles.

The Kindle Conundrum

Amazon insists that it is the last time. In a canned statement sent over email, the company says it's changing its systems "so that in the future we will not remove books from customers’ devices in these circumstances." But the law may say otherwise.

Amazon doesn't distribute books to the Kindle over the public internet. Etexts are downloaded via a private wireless network dubbed "Whispernet," and the company has shown it has the technical power to vanish those titles at any time. If a copyright holder sued for the removal of a title, a judge may very well force Amazon to remove it.

"Amazon has the capacity to control the bits after they've left the store," says Santa Clara University law professor and tech law blogger Eric Goldman. "I'm reasonably confident that what promoted Amazon to wipe the bits off of people's devices was them asking themselves 'How are we going to explain to a judge that we have the capacity to wipe bits from the device but we sat back and chose not to use it?'"

If you're running a website and someone posts copyrighted content, you're legally protected if you remove the content on request, thanks to the safe harbor built into the US Digital Millennium Copyright Act. You needn't worry about anyone who has already consumed or downloaded the content. But the Kindle isn't a website.

"This is not a classic DMCA environment," says Peter Brantley, director of the Internet Archive, overseeing efforts to scan library texts and put them online with un-Google-like respect for copyright.

"It's not as if Amazon is an internet service provider providing a particular kind of application." Instead, Amazon is licensing content on a private network. You could argue that DMCA rules apply to the end-user device as well.

"Used to be, stuff was on the server or stuff was on the client. Now it's a little bit more complicated. Stuff might be partially on the server and partially on the client, and the server might have the capacity to control what's going on on the client," Goldman says.

"The judge might say that the network is the full bundle - store, wireless network, device. And if that's the case, the full bundle would be governed by standard copyright law."

But there's very little precedent here. Even Goldman and Brantley - both steeped in the vagaries of online law - are at pains to sift through Amazon's position. Which only reinforces the notion that Amazon can't possibly say that its Big Brother moment won't be repeated.

"We're entering these new domains where what acquisition means and what ownership means has not been well demarcated," Brantley says. "Even if Amazon vows to never again under these circumstances grab and delete a book off of a Kindle, there are other circumstances where they might be compelled to do that."

Hold tight to that Orwell paperback. And be careful of the flame. ®