Posted by Eugene Volokh:
More on Amazon's Deleting Books from Customers' Kindles:
http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248045949
It now appears that [1]Amazon deleted a particular edition of 1984
from customers' Kindles because the edition was [2]infringing:
An Amazon spokesman, Drew Herdener, said in an e-mail message that
the books were added to the Kindle store by a company that did not
have rights to them, using a self-service function. �When we were
notified of this by the rights holder, we removed the illegal
copies from our systems and from customers� devices, and refunded
customers,� he said.
Does that make the deletion of the books proper? I don't think so.
1. It's true that Amazon might well have been infringing copyright by
distributing the books, even though it was doing so unwittingly. (I
don't think it would be immune from liability under 17 U.S.C. � 512,
but I don't want to get into the details of that now.) It certainly
had an obligation to remove the material from its own site once it
learned that it was infringing.
2. It's also true that, under U.S. law, even reading an infringing
book on one's electronic reader might be an infringement. That's not
true for traditional books; if you read at home a book that turns out
to be infringing, you're not an infringer. If you sell it or give it
away to someone, you probably are, but just reading it doesn't
implicate any of the copyright owner's exclusive rights. But when you
read an electronic book, you are necessarily making copies of the book
inside your computer system, and onto your computer screen, and those
copies are often present there for periods of longer than transitory
duration. That likely means that you're infringing the copyright
owner's exclusive right to make copies. (By authorizing the sale of an
electronic version, the copyright owner is implicitly or expressly
licensing people to do the electronic copying involved in reading
authorized copies; but here there was no such initial authorization.)
So unless the home reading is a "fair use," even of an infringing
copy, the user might be infringing copyright by reading the electronic
book on a Kindle in the U.S.
3. But that's a "might be." Perhaps the user can win on a fair use
defense; perhaps courts might conclude that online reading of an
electronic book on one's own Kindle should be treated legally the same
as the reading of a physical book; the matter is not settled.
And it's only if the reading takes place in the U.S. In other
countries, the law might be different, and reading an electronic book
might be as noninfringing as is reading a paper book. What's more, it
has been said that Orwell's works are in the public domain in some
other countries, including Canada. (I haven't investigated this
closely myself, but [3]this site, among others, makes that assertion.)
So reading the Orwell work on your Kindle in Canada might well not be
infringing, unless there's some added text in that work, for instance
someone's Introduction, that is not yet in the public domain.
4. And on top of that, even if your reading the work on your Kindle
might be an infringement, that's your infringement. Amazon at that
point is not legally responsible for your infringement (though it was
for the original infringement in the sale of the book). It thus can't
defend itself on the grounds that the law requires it to take this
step, in order to stop its own infringement -- deleting your copy
wouldn't have stopped its own infringement, but at most might have
prevented an infringement by someone else (its customers), or
mitigated the harm caused by Amazon's original infringement. And as I
mentioned, the actions that the deletion was preventing might not even
have been infringing.
5. Nor does it seem to me that Amazon can defend itself on the grounds
that it was exercising its contractual rights to delete infringing
material. As I read its [4]Kindle License Agreement, it has not
reserved any such rights. Rather, it says (emphasis added), "Upon your
payment of the applicable fees set by Amazon, Amazon grants you the
non-exclusive right to keep a permanent copy of the applicable Digital
Content and to view, use, and display such Digital Content an
unlimited number of times, solely on the Device or as authorized by
Amazon as part of the Service and solely for your personal,
non-commercial use."
Even if Amazon had reserved such a right under its contract, I think
that would have been something that many readers would have found
quite troubling, especially given that the reservation of this right
would have been unexpected, contrary to the way things are done with
traditional books, and put somewhere inside an agreement that no-one
reads. The contractual term might have been enforceable, but still
understandably upsetting to readers. But as best I can tell, no such
right was reserved; in fact, the deletion was a breach of its
contract, and quite possibly a trespass on readers' Kindles.
6. On top of that, the trespass wasn't just annoying, but for some
people quite damaging; some readers [5]lost their own annotations
together with the electronic book.
7. All this [6]may have happened not as a deliberate decision to
remove this book from customers' Kindles, but rather as an artifact of
the way Amazon's computer system works: when a book is deleted from
the central site, all downloaded copies are also apparently deleted.
But if that's so, that just means there's a seriously bad design
choice (or a serious bug) in the Amazon system. It hardly gets Amazon
off the hook.
For these reasons, I'm pleased that [7]Amazon has changed its
policies:
Amazon effectively acknowledged that the deletions were a bad idea.
�We are changing our systems so that in the future we will not
remove books from customers� devices in these circumstances,� Mr.
Herdener said.
References
1. http://volokh.com/archives/archive_2009_07_12-2009_07_18.shtml#1247864701
2.
http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html?_r=1&adxnnl=1&adxnnlx=1247940001-OddjEm/R26ac5zs6rOnJ1Q
3. http://gaslight.mtroyal.ab.ca/Orwell.htm
4. http://www.amazon.com/gp/help/customer/display.html?nodeId=200144530
5.
http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html?_r=1&adxnnl=1&adxnnlx=1247940001-OddjEm/R26ac5zs6rOnJ1Q
6.
http://arstechnica.com/tech-policy/news/2009/07/amazon-sold-pirated-books-raided-some-kindles.ars
7.
http://www.nytimes.com/2009/07/18/technology/companies/18amazon.html?_r=1&adxnnl=1&adxnnlx=1247940001-OddjEm/R26ac5zs6rOnJ1Q
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