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.

Tristan Louis is the founder and CEO of Keepskor and writes the influential tnl.net weblog, where this was initially posted under the title Cloud Wars — A New Hope. You can follow him on twitter here or receive his weekly newsletter by subscribing here.

The Kindle Incident

For readers who may not know this, Amazon unveiled an interesting electronic reader called the Kindle, allowing people who bought it to legally purchase electronic copies of books. Along the way, Amazon also opened up a program allowing small publishers to publish books directly into their marketplace.

However, it appears that Amazon’s own quality control seemed to fail when it came to establishing ownership of the intellectual property uploaded to its site when two titles by George Orwell, Nineteen Eighty Four and Animal Farm, were uploaded and sold by a rogue bookaneer.

Subsequently discovering that it had sold e-books for which the publisher did not have rights, Amazon issued refunds to its customers and removed the books from the user’s device. Where it gets a little gray in terms of what they did is that, along with the removal of the books, they also removed any annotation users already had made, thus erasing content that was created ON the device if not FOR the device. The New York Times story on the deletion listed the following:

Justin Gawronski, a 17-year-old from the Detroit area, was reading “1984” on his Kindle for a summer assignment and lost all his notes and annotations when the file vanished. “They didn’t just take a book back, they stole my work,” he said.

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.

Amazon was justified in protecting the copyright holders for the infringing books but where it went wrong is when it over-reached by deleting content that was created by its customers. In that particular case, one could argue that Amazon was responsible for censorship. The company will need to change its systems and policies to ensure that it does not impede the customer’s experience. While it currently has only removed a couple of titles along with annotations, the company should ensure that it keep annotations separate so that any further title removal does not destroy user generated content. An extra nice move would be if the company were to replace the titles with their legal equivalent. The common should also be a lot more thorough in verifying intellectual property claims before offering titles, especially since they control every piece of the delivery chain from the intellectual property holder to the reader.

AT&T and 4chan.org

In a somewhat related incident, AT&T had a recent run-in with one of the most influential (and that does not necessarily mean good) entity on the internet: the 4chan.org community. 4chan is primarily and image and discussion board and word started to spread that AT&T customers had lost accesses to its images over the weekend. After a substantial amount of noise in several online forums, AT&T claimed that it had blocked the site because it was suffering from a denial of service attack from it.

What is interesting here is that AT&T acted without prior notice and blocked a site without providing any information upfront as to the reason for blocking the site. While AT&T stopped blocking the site as the result of a concerted effort by its fans, the founder of 4chan hit the nail on the head when he said (emphasis is mine):

In the end, this wasn’t a sinister act of censorship, but rather a bit of a mistake and a poorly executed, disproportionate response on AT&T’s part. Whoever pulled the trigger on blackholing the site probably didn’t anticipate [nor intend] the consequences of doing so. We’re glad to see this short-lived debacle has prompted renewed interest and debate over net neutrality and internet censorship—two very important issues that don’t get nearly enough attention—so perhaps this was all just a blessing in disguise.

Net Neutrality is the basic idea that any broadband provider should offer access to the internet without any limitations as to what kind of content can be accessed and here we have an example of an ISP selectively blocking a site. While the AT&T example is only the most recent one to come to light, it appears that this is a phenomenon that could become more common as internet service providers decide what kind of content takes too much bandwidth or for other reasons.

In the past, such censorship would have meant that a provider censoring access were to be considered as a publisher. In 1995, with Stratton Oakmont vs. Prodigy, the supreme court of the United States held that online services which were removing content from their online forums could be considered as publishers and therefore held liable for any content they gave users access to. Since then, Lobbyists in the telecom industry have ensured that such decision would no longer be applicable by getting the US Congress to amend the US code and reverse the Supreme Court decision.

The Urge to kill(switch)

About a year ago, a storm arose around rumors that Apple’s iPhone devices were sporting code that could disable applications running on them. The existence of such code, also known as a kill switch, was later confirmed by Steve Jobs:

Jobs confirmed that iPhones routinely check an Apple Web site that could, in theory, trigger the removal of the undesirable software from the devices.

He told the paper that Apple needed the capability in case it inadvertently allowed a malicious program to be distributed to iPhones through the App Store.

Once again, we see here a company with the best of intentions (protecting people from malicious programs) with its finger on a button that could be very scary if misuse. It is worth noting that Apple is not uniquely in this position as Google fessed up to having similar code embedded in Android-based phones:

Google may discover a product that violates the developer distribution agreement … in such an instance, Google retains the right to remotely remove those applications from your device at its sole discretion

And while one may think that such devices are limited to high end cell phones catering to a limited community, it appears that such devices are now becoming more common in children computers, cheap laptops, and even cars. And while many will claim that the solution to this is to open up source code, the Mozilla foundation itself has admitted to the appearance of such kill switch in the popular Firefox browser.

So kill switches are there for the best of intentions but how does one define those?

Apple and the App Store

The same kind of issue arises out of the treatment of applications to enter the Apple Application Store. A month doesn’t seem to pass by without another example of a developer seeing Apple remove his/her programs from their store.

The latest example is that of a developer who apparently committed the crime of offering an application that allowed iPhone users to use Google Voice, a Voice over IP program. And apparently, similar applications were subsequently removed from the Apple App Store.

While no official word has been given as to whether the fact that application were potentially representing a threat to the business model of Apple’s exclusive partners in the telecom industry, it doesn’t seem to be too much of a stretch to think so.

Can such intention be considered in the best interest of the end user? or in the best interest of the device manufacturer? And can such intention be changed retroactively, leveraging the presence of an existing kill switch?

Questions about the future?

In a previous entry, I’ve argued that we were moving to an economy where goods tended to be rented rather than bought. Embedded in what I was trying to communicate there was the question around what ownership actually means.

If an external party can control when or how you can use a device or decide on what you can or cannot see, or select what programs you can install on it, are you still owning it?

And while today’s corporate interventions are based on the best of intentions, what about tomorrow’s? or the next day’s? Will those intentions still sync up with yours?

Tristan Louis is the founder and CEO of Keepskor and writes the influential tnl.net weblog, where this was initially posted under the title A Dark Cloud. You can follow him on twitter here or receive his weekly newsletter by subscribing here.