an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The New York Times reports that Amazon.com found out that the publisher of Kindle versions of George Orwell's books 1984 and Animal Farm decided that it didn't want to give the rights to a Kindle version. So Amazon.com used its wireless connection to each Kindle to delete copies on various owners' Kindles and refunded their money. You see, because of the wireless connection, Amazon.com knows what books are on your Kindle and it can delete them or modify them at will.
Apparently, the irony of deleting a book about Big Brother watching you was lost on both the publisher and Amazon.com. 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.
Now if you had made a copy of the e-book files and downloaded them onto your computer, you can probably restore the e-books on your Kindle. Amazon can delete the files again, but since you have a copy, you can keep restoring it. (This assumes that Amazon doesn't later installed new software on the Kindle's operating system that will prevent your uploading the e-book, of course). Another possibility is to upload a copy and turn off your wireless connection as much as possible in order to minimize Amazon's control over your electronic library. But since many people haven't thought of doing this, and like the convenience of being connected to the Kindle store, Amazon can delete a good many copies of Orwell's books, all without getting the end users' permissions.
Another interesting feature of this story is that it shows us an important but little understood effect of the e-book revolution on the rights of book purchasers and readers. 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. In particular, the e-book license is designed to get around the first sale doctrine. So even though you think you own the e-book on your Kindle, Amazon can, through the Kindle licensing agreement, reserve the right to remove it or modify it if it cannot obtain the rights or the rights change, as they did in the case of the Orwell books.
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.