Amazon’s move to pull copies of George Orwell’s 1984 novel without warning from Kindles has opened it up to attack from civil libertarians and others concerned about the Big Brother implications. But a civil liberties argument is also being used to challenge the hated Digital Rights Management system that underpins the Kindle. And in a further twist, the issue might just expose the shaky legal foundations on which much of the early ebook industry rests.
The trouble started when Amazon withdrew an ebook version of Orwell’s novel after it found the edition infringed copyright. But its hamfisted method of doing this — dipping into its customers’ Kindles without them knowing and removing the offending work — has unnerved a lot of people. It also prompted an embarrassed, almost grovelling, apology from Amazon CEO Jeff Bezos.
But as this New York Times story shows, critics are quick to use the issue as an attack on Digital Rights Management (DRM) as well as civil liberties.
The civil liberties issue is clear enough: If Amazon can withdraw a purchased ebook without consent from its owners’ Kindles, what could a ruthless government or censor do to remove material causing offence for other reasons? In this respect, it’s hard to miss the irony that it was an edition of Orwell’s 1984 that has prompted this fear.
The connection to DRM, widely hated and seen many many as infringing consumer rights, is an interesting turn in this argument. It looks like it was Amazon’s DRM system that was used to remove access to the offending file. Campaigners are now using this incident to attack Amazon’s overall use of DRM.
The legal problem comes from a related issue. An awkward aspect of US copyright law called the First Sale Doctrine could well create problems for Amazon and its publishers. The First Sale Doctrine is a US legal statute that essentially states that once a person buys a copyrighted item, the copyright owner’s control over how the new owner uses and transfers that item largely ends. So for instance the legitimate purchaser retains their right to resell, lend, rent or give the item away. Other jurisdictions may have a similar principle to contend with so the issue is by no means confined to the US or to works sold into the US.
In a possible attempt to circumvent this legal principle, Amazon’s terms of sale state that the ebook is licensed rather than sold outright. This is probably news to a lot of Kindle owners who feel like they’ve bought ownership of their ebook with the same rights as a p-book.
Personally, I think Amazon and publishers should be able to limit transfer of ebooks. But Amazon’s problem here — legal as well as public relations — is that it’s creating the appearance that its ebooks are sold outright rather than on some sort of royalty-free license-to-use basis. This point — that if it looks like a sale, it probably is a sale in spite of what your terms of sale say — caught out software maker Autodesk a couple of years ago in a case that you could imagine would share a lot of similarities with ebooks if a disgruntled Amazon customer decided to challenge Amazon’s or a publisher’s post-sale behaviour. In the Autodesk case, an eBay trader was selling used copies of its software which it argued were only sold in the first instance on a license-to-use basis. The judge didn’t buy this argument, in spite of Autodesk’s explicit terms of sale, because it gave the appearance of being an outright sale.
The industry, and Amazon, needs to start an education process to make this issue much clearer. And they really need to do some soul searching about whether they can, in fact, have a bob each way on this issue. It’s understandable why Amazon, and no doubt many of its publishers, are being a bit ambiguous on this point. Who, after all, will want to pay close to the full price of a p-book for something that is essentially a long term rental?
But if they don’t come clean, there might be some unpleasant and unexpected consequences. If First Sale rights, or a similar legal doctrine, is recognised in case law or statute as covering ebook sales, there could be interesting consequences, particularly if DRM is also challenged on similar grounds. For instance, a second hand copy of a paper book is generally much cheaper than a new one, doesn’t travel widely, and gets less valuable as its wears out. But what value will a “second hand” ebook file have? If it doesn’t wear out and it travels well, a library or rental store can lend it continually for years with no discernible lessening of quality and no further payment to the author or publisher. And hey, let’s not forget how sociable the web is these days. It’s easy to imagine your favourite internet book club becoming a vast channel to free loans from your large network of online “friends”. Sound familar?