Cloud Wars — A New Hope

The recent events around the rise of cen­sor­ship in inter­net con­nected devices high­lighted what could be con­sid­ered as an over­reach from cor­po­ra­tions into people’s use of devices. If today’s news is to be believed, con­sumers are now start­ing to strike back, pos­si­bly lay­ing the ground­work for a wider set of mar­ket­place behav­iors, legal rul­ings, and poten­tially poli­cies that pro­tect indi­vid­ual rights in the new “cloud-based” world of computing.

The Kin­dle Lawsuit

In my last entry, I pointed to the case of Justin Gawron­ski, who was men­tioned almost as an aside in the New York Times arti­cle about Ama­zon delet­ing legally pur­chased and down­loaded con­tent from their users’ Kin­dle devices. At the time, I sus­pected that the dele­tion of anno­ta­tions could even­tu­ally lead to lawsuits:

Beyond the irony of Ama­zon throw­ing a book like Nine­teen Eighty Four down the mem­ory hole (a large incin­er­a­tor in that book), Amazon’s action raise trou­bling ques­tions as to the abil­ity of online providers to remove con­tent they have not cre­ated. I leave it to legal scholar to assess whether Ama­zon could actu­ally be con­sid­ered to have infringed on the intel­lec­tual prop­erty rights of peo­ple whose anno­ta­tions were removed along with the books.

Today, news comes out that this stu­dent is one of the plain­tiffs in a law­suit against Ama­zon, mak­ing this the first legal case to test what a cloud-based provider can and can­not do with legit­i­mately pur­chased con­tent. The com­plaint uses lan­guage sim­i­lar to what I talked about:

2. With an uncanny knack for irony, Ama­zon recently remotely deleted any traces of
cer­tain elec­tronic copies of George Orwell’s “1984” and “Ani­mal Farm” from cus­tomers’
Kin­dles and iPhones, thereby send­ing these books down Orwell’s so-called “mem­ory hole.”

[…]

16. On or about July 16 and 17, 2009, Ama­zon with­drew from sale cer­tain e-books,
includ­ing George Orwell’s “1984” and “Ani­mal Farm.” Ama­zon then remotely deleted these ebooks
from pur­chasers’ Kin­dles and iPhones. In doing so, Ama­zon not only deleted the e-books,
but also ren­dered use­less any elec­tronic notes and anno­ta­tions that con­sumers had made within
these e-books because the notes were no longer tied to the ref­er­enced or high­lighted text.

While I had ini­tially thought that the con­tent was deleted, it turns out that the anno­ta­tions are still avail­able on the device, albeit with­out any con­text to them, which is what the law­suit is now testing:

54. Plain­tiff Gawron­ski and the Big Brother Work-Product Sub­class suf­fered
dam­ages because they cre­ated con­tent on their Kin­dles within the pur­chased con­tent that
Ama­zon deleted.

Most sur­pris­ing is that the law­suit did not look at Amazon’s infringe­ment of its customer’s rights under the first sale doc­trine. The first sale doc­trine, which has been in place since the begin­ning of the 20th cen­tury, basi­cally states that pur­chases can trans­fer a law­fully acquired copy of a copy­righted work with­out requir­ing per­mis­sion from the copy­right holder. Many peo­ple inter­pret this to mean that:

the copy­right holder’s rights to con­trol the change of own­er­ship of a par­tic­u­lar copy end once that copy is sold, as long as no addi­tional copies are made. This doc­trine is also referred to as the “first sale rule” or “exhaus­tion rule.”

It could be argued that, by tak­ing the book away from its users, Ama­zon has con­trolled the own­er­ship of a par­tic­u­lar copy that had already been sold, even though no addi­tional copy was made. It was sur­pris­ing to not see the law­suit also incor­po­rat­ing this point as it is prob­a­bly one of the larger legal infrige­ments Ama­zon could be charged with when it comes to that incident.

The Apple Store and iPhone community

Mean­while, while there are no legal rum­blings yet around Apple’s treat­ment of its devel­op­ment com­mu­nity. With every inci­dent of an app being denied access, it appears that a few more devel­op­ers decide that, while the plat­form is excit­ing to use, devel­op­ing for the iPhone is not worth the trou­ble. If it were one case, that could be con­sid­ered a dis­grun­tled devel­oper; if it were two, that could also be ignored; but with every new inci­dent, it appears another devel­oper or group of devel­oper decides that they’d rather not develop for the platform.

When I was in jour­nal­ism school, we were told that when there is a high sim­i­lar­ity between three dif­fer­ent events in a very short time, we ought to pay closer atten­tion as it could be a trend. When that sim­i­lar­ity pops over and over again, as in the case of the iPhone devel­op­ment com­mu­nity, it seems like a slow grum­ble is turn­ing into some­thing more potent.

But of course, one could argue that such grum­bles are really noth­ing to worry about, as long as Apple can con­tinue grow­ing its user base. After all, the com­pany makes more money sell­ing devices that it does from the rev­enue gen­er­ated by the app store.

True to some extent but that par­tic­u­lar issue starts falling on its face when one con­sid­ers two impor­tant facts:

1. Sell­ing appli­ca­tions through the App Store is prob­a­bly a more prof­itable busi­ness (as costs asso­ci­ated to the sale, as rep­re­sented by a per­cent­age of the rev­enue is prob­a­bly lower than it would be on hardware).
2. Promi­nent users are start­ing to com­plain loudly.

Of course, none of this is going to sin­gle hand­edly stop the growth of the iPhone but what is increas­ingly appear­ing is that Apple is hav­ing a poten­tial com­mu­ni­ca­tion chal­lenge on its hands. A sin­gle dis­grun­tled devel­oper or dis­grun­tled user can­not bring the prod­uct down but a con­tin­u­ous stream of com­plaints starts cre­at­ing the appear­ance of wrong-doing, poten­tially under­min­ing the long term suc­cess of the offering.

Apple is still thought of by the major­ity of the peo­ple as a cool com­pany (as Google and Microsoft once were), a shin­ning bea­con high­light­ing the power of inno­va­tion and cap­i­tal­ism. As it grows mar­ket­share, what was once con­sid­ered OK as a way to help the com­pany com­pete against larger play­ers (the afore­men­tioned Microsoft) is increas­ingly being con­sid­ered as arro­gant and evil.

What does it all mean?

Of course, at this point, if you’re still read­ing, you’re prob­a­bly won­der­ing how this is an exam­ple of a new hope. The new hope is aris­ing out of the fact that a largely quiet pop­u­la­tion is now start­ing to fight back against the over-reach of large cor­po­ra­tions into what level of con­trols such cor­po­ra­tions will be able to excert. In the case of Ama­zon, the class action has the poten­tial of redefin­ing what a com­pany can and can­not do with a pur­chase device. Such deci­sion could also estab­lish some prece­dents as to the use of kill-switches in elec­tronic devices (or invertly, give large cor­po­ra­tions more power and legally cod­ify the level of con­trol they have been afforded).

In the pub­lic arena, the push-back Apple is encoun­ter­ing from both its devel­oper and early adopter com­mu­ni­ties could help estab­lish new bound­aries as to what is and isn’t accepted in terms of con­trol­ling access through online gate­ways (in the case of Apple, that gate­way is the App store but one could argue that the social rules estab­lished around the App store could even­tu­ally extend to the kind of per­cep­tion around what is and isn’t accept­able in terms of con­sumer ISPs block­ing inter­net sites).

With each event, the online com­mu­nity is also estab­lish­ing some prece­dent as to what will be con­sid­ered accept­able in an envi­ron­ment where all data is stored not a user’s machine but on some remote cor­po­rate server.

In each of these indi­vid­ual cases, aware­ness is raised and with every other skir­mish, more peo­ple become aware of the issues at stake. It is my belief that, as more peo­ple become aware, more peo­ple will require less cor­po­rate con­trol and more indi­vid­ual con­trol. And that gives me hope.

Update: The gov­ern­ment is now look­ing into Apple’s removal of Google Voice related apps from their App store. This is get­ting interesting.