There have been lots of reports flying around recently about the decision by Amazon to delete copies of two works by George Orwell (ironic, that) from the Kindle devices of folks who thought they had bought those books for once and for all time. There on reports and comments about this here, here and here. Technologically naive as I am, my first response to the story was “wow, I didn’t know they could do that.” My second response was to reconsider my growing inclination to buy a Kindle.
The really meaty issues, of course, are not whether I buy a Kindle or not, but relate to copyright issues and privacy. We are used to the idea that a copy of a book is mine to do with as I please once I have purchased a legally-made copy of it. The same is true of a CD or a DVD; I can rent, donate, destroy, lend or resell the single physical copy that embodies intellectual property because of the provision in our law called the doctrine of first sale. We know that first sale does not necessarily apply in the same way to digital files, but the Kindle cases really pushes the issue. Everything about the purchase of an e-book from Amazon looks like a sale, and consumers can easily be forgiven for thinking that they own something at the end of the process. It is probably time for a legislative look at how first sale applies in the digital world. While there have been suggestions of a “forward and delete” model for digital first sale that would allow a consumer to transfer a digital file to someone else as long as copies were not multiplied, this situation raises a more fundamental question. When can a transaction that looks like a sale be treated as a mere license, and when will consumer protection concerns step in to enforce the privileges that go with a purchase?
It is important to note that, in the case of “1984” and “Animal Farm,” there was no question of preventing consumers from making unauthorized copies, which is the usual reason given for the assertion that first sale does not apply to the digital environment. Here, it was Amazon that was selling the unauthorized copies, and consumers were deprived of ownership by remote action, even after they had purchased the books. Why this could not be remedied by having Amazon pay the rights holder for the infringement, which would have been the solution if a publisher distributed print copies of a book without authorization from the copyright holder, is not clear to me.
One thing that several of the stories about this contretemps have in common is reference to Jonathan Zittrain’s must-read book “The Future of the Internet… and how to stop it.” It is always good for an author when he correctly predicts a technological trend, and Zittrain got this one dead-on. His warning that the Internet is moving away from the programmable devices that fostered so much innovation toward tightly-control, “tethered” appliances proves eerily prophetic when Amazon starts deleting books from consumers’ devices. It makes reading Zittrain’s discussion of all of the implications of this development that much more important.
Zittrain had an excellent op-ed piece in the New York Times on July 20, called “Lost in the Cloud,” that discusses some of the privacy and censorship issues that are inherent in the development of these Internet appliances and makes brief reference to the Kindle issue. I am happy to be able to report that Zittrain will be coming to Duke during the upcoming academic year as part of our Provost’s Lecture Series; I cannot imagine a more important discussion to have than one about the issues he is raising.