Pandora's memory hole

By now, even Amazon would acknowledge mishandling the remote deletion of George Orwell’s 1984 and Animal Farm from hundreds of unsuspecting Kindles last week in response to a dispute over the rights to the works in the U.S. Apart from the near criminal lack of irony required to send 1984 — of all books — down the memory hole, Amazon had never bothered to disclose in its terms of service that such a capability existed, or that it retained the right to use it without warning.

big-brotherBut as Glenn Fleishman points out in his excllent overview of the case for TidBITS, Amazon was trying to avoid any and all liability for distributing unauthorized copies of the two books, and thus took every step available to it to disassociate itself from the infringing copies — including un-distributing them — apparently without thinking through the PR implications of the move.

My question is: Why would Amazon want that capability in the first place?  The Media Wonk is not an attorney, so I may be wrong on any or all of these points (I would certainly welcome feedback from actual attorneys). But it seems to  me that Amazon is asking for a trouble on a number of possible fronts:

  1. In the Orwell case, remote deletion put Amazon customers smack in the middle of a rights dispute they had no part in. The Kindle owners who bought the e-books in question did so in good faith, having no way of knowing that the rights were in question. And yet their privacy was invaded without so much as a “howdy do” for something over which they had no control. That’s abusive, not to mention a crappy way to treat customers, so why would you even want or feel you need such a capability? Especially since;
  2. Copyright law allows a court to order the destruction of infringing copies under certain circumstances. That’s often impractical once the copies are in the stream of commerce, so it isn’t often invoked. But in revealing that it has the capability to remotely delete copies even after they’re in readers’ hands Amazon can now expect to face demands to use that capability in future rights disputes;
  3. Napster got in trouble because it maintained a central index of songs available for download on the system, giving it a high degree of control — to which liability attached — over what its users could and could not access. By granting itself continued and ongoing control over the content on users’ Kindles, Amazon may actually increase its own potential liability in infringement cases.
  4.  While Amazon’s terms of service make it clear that when you “purchase” an e-book you’re really only purchasing a license to use the file in certain ways, when you buy Kindle it’s an outright purchase. You own the thing, period. Reaching into a Kindle remotely and deleting data, therefore, might be construed as akin to hacking a computer, which is illegal. There may be something in the Whispernet terms of service that gives Amazon the right to hack your Kindle but, again, it seems like asking for trouble.
  5. The capability also puts Amazon squarely in the middle of the brewing controversy over software kill switches, which strikes me as a controversy it doesn’t need to get involved in.

The key question, of course, is why run those risks (assuming they really are risks)? What does Amazon get by maintaining an e-book kill switch?

The most likely answer is that it gives substance to Amazon’s claim that an e-book “purchase” is really a license, and a license, by definition, is revocable. Without a practical ability to revoke the license, in fact, Amazon risks having a court declare that the transaction is, in fact, a purchase, regardless of what Amazon calls it. That, in turn, would raise also sorts of messy questions about fair use and the first sale doctrine, which I’m sure Amazon doesn’t want to have to deal with (and has probably promised publishers they could avoid).

Rather than rub its customers’ noses in those messy legal details, it simply left that part out of its terms of service. Which brings me to another question for any lawyers out there: Does Amazon now have a potential problem with the enforceability of the rest of the terms of service contract?