More on the Kindle/Orwell affair

| Comments (6) | Misc
Unsurprisingly, defenses of Amazon's behavior in the Kindle affair have started to emerge. I ran into this argument from Peter Glaskowsky today (original source: Hovav Shacham):
The listing for the illegal copy of "1984" is still present on Amazon, though it can no longer be purchased. The page for "Animal Farm" from the same publisher still appears in Google's listings, but is no longer available on Amazon--though another pirated copy is still listed but not purchasable. (I'm not sure these are exactly the same copies at issue in this case, but at least that copy of "1984" was yanked in the same way, according to an Amazon customer discussion.)

Note the caveat placed on the 1984 page by the publisher:

"This work is in the public domain in Canada, Australia, and other countries. It may still be copyrighted in some countries. The user should determine whether the work is in the public domain in their own country before using it."

But of course, verifying the copyright status of a book isn't just the user's responsibility. It's the publisher's, too, and Amazon's.

When Amazon discovered these unauthorized sales, it did the right thing: it reversed them.

The police would do the same thing if they discovered a stolen car in your driveway: just take it away. You never owned it.

First, this argument elides the difference between actual theft and copyright infringement. You'd hardly think this would need to be pointed out, but if I steal your car, that pretty much precludes your driving it. If I violate copyright on a book you wrote, at most I've deprived you of whatever revenue you would have made had I bought it instead. That's a pretty significant difference.

Even if we ignore that, this is a pretty tendentious analogy: Amazon is not the police. Say that the original vendor had stolen a box of copies of 1984 and was selling them on Amazon marketplace. If I bought one and then Amazon later determined that they were stolen, it's not like they would be allowed to break into my house and repossess it, even if they gave me my money back. The original owner might be able to call the police and arrange for return of the property, but that's a pretty different story.

And of course, this isn't a case of theft, but rather (alleged) copyright infringement. I don't even know what the case law is in terms of the original rights holder repossessing material where the person in possession of material acted in good faith, but it's not clear to me it's that straightforward a proposition.

6 Comments

Even if one accepts the car/digital book analogy, the police don't take the car away and return it to the previous owner, because, of course, the police do not technically know who that is. They may impound it for use as evidence, but the owner of the car will be determined by the courts.

Of course, I'm not a lawyer.

What Amazon should've done was left the unauthorized editions alone, and simply credited the legitimate rights-holders with the revenues realized from sale of said unauthorized editions (I'm pretty sure Amazon could've worked this out, given a bit of common sense).

That being said, can you name a single other case in which purchasers of unauthorized copies of *anything* - books, DVDs, CDs, et. al. - have received a refund?

Yes, Amazon were tone-deaf (as they are on so much else to do with the Kindle), but the real story is Amazon's lack of proper oversight of the DTP submission process, which has led to the pollution of the Kindle Store with tons of low-quality/duplicative/unlicensed/miscategorized e-books, as well as the fact that they did provide their customers with a refund (although as noted above, the smarter thing to've done would simply have been to pay the rights-holders).

Ihr könnt die Bücher einfach wiederbekommen - aber stellt sicher,
dass ihr euch in
Australien aufhaltet und das Buch nach Ende des Australienaufenthalts
wieder löscht, sonst seid ihr nämlich böse - das Internet ist ja
schließlich kein rechtsfreier Raum.

Under Australian copyright laws, copyright in literary works of
authors, who died before 1955, has expired. These works are now
within the ‘public domain’ in Australia and this is why the
University is able to reproduce such works on this site. HOWEVER,
works may remain copyrighted in other countries. If copyright in the
work still subsists in the country from which you are accessing this
website, it will be illegal for you to download the work. It is your
responsibility to check the applicable copyright laws in your
country.

In particular, the works of George Orwell are still under copyright
in the United States and the European Union, and therefore users in
those countries should not download these works.

http://ebooks.adelaide.edu.au/o/orwell/george/

If I bought one and then Amazon later determined that they were stolen, it's not like they would be allowed to break into my house and repossess it, even if they gave me my money back.
But that would have been hard for Amazon to do. Deleting the copy from their server (which, if certain accounts I read are correct, causes it to be deleted from your Kindle the next time it syncs) is very very easy.

I don't have the right to break into your house to retrieve my stuff. But if you leave it on your driveway, I can.

Amazon may have never designed for a "we need to get rid of this book but not hit our customer's repository" scenario, which I feel pity for. Although the enduser may not understand, as an engineer I know how hard it is to anticipate all the things your system may need to do. They were in a bad place and took a bad action as a result, but I can't pretend I am superior or smarter and wouldn't have done the same.

Sorry you got all distracted by my admittedly clumsy analogy. My point was only to show that the final result was appropriate; the person who ended up with the stolen property didn't get to keep it. Your specific criticisms are all correct, but your conclusion is still wrong. It was entirely appropriate for Amazon to remove those files.

As Dan Weber says here, if I see my own stolen property in your driveway, I'm entitled to take it back. (This case is still different, of course; the problem was that these e-books existed at all, and Amazon simply caused them to cease to exist.)

I could be prosecuted for theft if I took something of yours by mistake, but there was zero risk of that problem in this case. Amazon put these files on these customers' Kindles, and Amazon knew exactly what to remove. (Contrary to some media reports, Amazon did not remove anything else. Notes and bookmarks remained on the customers' Kindles.)

@Peter. Remember, the rules of intellectual property are not always perfectly analogous to those of physical property. The law on this particular point is not settled.

In fact, if someone sold you a book that they printed without permission, the author could _not_ confiscate it from you. But it's unclear if that's the case for electronic books because the reader has to make another copy to present it on the screen.

See http://www.volokh.com/posts/1248045949.shtml

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