Amazon At It Again: The Case of the Vanishing Orwell

The New York Times business section has an interesting article today on the fact that many Kindle owners recently found that certain e-books they purchased had mysteriously vanished from their devices. Ironically, the most common disappeared texts were George Orwell’s 1984 and Animal Farm. It turns out that the company who uploaded copies of these texts for sale on Amazon’s e-book store did not actually have the rights to distribute the works, so after a complaint from the rights-holding publisher, Amazon decided to yank all of the offending copies.

As we have noted before, Amazon’s practice of remotely fiddling with purchased Kindle content is a hotbed of enclosure issues. In fact, this article contains a very succinct presentation of the digital content ownership issues at play:

Amazon’s published terms of service agreement for the Kindle does not appear to give the company the right to delete purchases after they have been made. It says Amazon grants customers the right to keep a “permanent copy of the applicable digital content.”

Retailers of physical goods cannot, of course, force their way into a customer’s home to take back a purchase, no matter how bootlegged it turns out to be. Yet Amazon appears to maintain a unique tether to the digital content it sells for the Kindle.

“It illustrates how few rights you have when you buy an e-book from Amazon,” said Bruce Schneier, chief security technology officer for British Telecom and an expert on computer security and commerce. “As a Kindle owner, I’m frustrated. I can’t lend people books and I can’t sell books that I’ve already read, and now it turns out that I can’t even count on still having my books tomorrow.”

Beyond these fundamental issues of ownership, there are two interesting addenda to this story:

1) A student who was reading 1984 for school lost not only the purchased text itself, but also all of his own annotations and notes that were attached to the e-book. That is, Amazon retains technological control not only of the content it sells, but also of the Kindle user’s original work created on the device.

2) The article notes that while the copyright for 1984 does not expire in the US until 2044, it has already expired in other countries (including Canada) and websites hosted in those countries already offer e-book versions for free. So, for the enterprising Kindle user who can load non-Amazon-sanctioned content onto their devices, avenues of digital copyfight resistance are open.

Technology Bill of Rights

Dovetailing perfectly with our discussion about the various modes of governance in relation to fair use, BoingBoing liked today to a Technology Bill of Rights drafted by Paul Venezia.

The six articles his lists address issues of liability for bugs in closed source software, the need for limitations on DRM, net neurality and anonymity, and so on. It’s a good thought piece in its own right, but particularly interesting here as we consider the various forms of authority that might be brought to bear on the privitization of technological resources. The idea that Venezia promotes here is that emerging world of digital technology and social interaction requires a codified set of universal rights for users, in particular to intercede in the imposition of (in this case, commercial or corporate) tyrrany. To quote Venezia:

The impetus for the creation of the Bill of Rights was the tyranny of the rulers in Britain and its effect on the colonies. As with much of human history, it takes a significant problem to cause the creation of a significant change to society. We may be nearing that point right now, and the time may soon be right for another Bill of Rights — one centered around technology.

Though he doesn’t say so explicitly, my sense is that the “significant problem” he’s referring to is the lack of corporate accountability inherrent in the wholesale privitization of the digital realm. It might be really useful to consider a comparison between this notion of technological rights and the development of labor regulation and unionization. In the latter, the notions of workers’ rights to fair wages, a safe workplace, etc. conflicted with free market notions of corporations’ (and supposedly workers’) rights to freely negotiate the terms of employment: if the poor laborer “wants” to work for peanuts, and the company wants to pay that much, who is the government to intervene? One could very easily see the same argument coming up in the contemprary technological debate: if the tech company wants to sell a product laden with proprietary, buggy software and the consumer agrees (at least implicitly though a EULA) to buy it that way, who’s to stop them? Indeed, this libertarian tone is prominent in the comments on Venezia’s post.

On a side note, perhaps Venezia should consider including an article regarding the retroactive disabling of tech functionality, such as in the case of the text-to-speech function on the Kindle that we discussed in an earlier post.

Rights of Monopoly, Rights of Access: The Kindle

We’ve posted a bit about cultural resources and made a brief pass at natural resources, here’s a little something on the third leg of our triumverate; the privitization of technological resources.

A recent post on BoingBoing provided updates on the copyright struggle surrounding the text-to-speech capabilities of the Kindle e-reader. At the core of this issue is a claim by the The Authors’ Guild that Kindle’s ability to read e-books aloud violates the copyright of those books by supposedly generating a derivative work. It should be the books’ copyright holders, they argue, that get to create and (most importantly, of course) sell audio versions of these works. Advocates for the visually impaired (and those with other reading difficulties), on the other hand, argue that disabling this feature essentially cuts them off from their only avenue of access to the device:

The simple option to have books read aloud to them—even by a computer—is an enormously powerful asset to those with a whole spectrum of difficulties, including dyslexia, ADD/ADHD, and linguistic impairment. English as a Second Language students (whose immersion is, often, primarily aural, and only later textual) also receive the obvious benefits of word-sound association.
…
The Author’s Guild seeks not only to prevent further cultural participation by reading-disabled people, but also to deny them the benefits of scientific advancement by blocking an existing technology from performing its intended role—and doing all this while demanding remuneration for a capability they themselves have done nothing to promote. [Knowledge Ecology Notes]

Furthermore, they claim that text-to-speech renditions of e-books are by no means of the same quality as audiobooks and thus should not challenge the market for such products.

So there is obviously an battle over cultural resources here: the Authors Guild think their constituents have a right to economic monopoly over any version of the books they wrote and visually impaired readers believe that they have the right to take advantage of technologies that provide them with access to the same set of cultural resources that seeing people have (they would, after all, still be paying to download the books to their Kindles). But what I want to talk about is the issue of technological resources developed once Amazon (seller of the Kindle) decided to cave to the Authors’ Guild and remotely disable the text-to-speech capabilities of e-books that customers had already downloaded.

In effect, the servers that every Kindle must connect with in order to access content are able to recognize a “text-to-speech flag” on a given work and remotely enable or disable that function. And if Amazon has the ability to remotely disable one function of the product that you have already bought, what’s to keep them from disabling other features. As Cory Doctorow points out on BoingBoing, Amazon has so far not disclosed “what other flags are lurking in the Kindle format: is there a ‘real only once’ flag? A ‘no turning the pages backwards’ flag?”

As with any DRM technology, there are grassroots countermeasures (for instance, an application called Mobi2Mobi) which allow the user to flip these switch themseles, but people with the tech saavy to employ them are certainly going to be a small subset of the overall Kindle user base.

The fact that Amazon was able to remotely disable an aspect of the Kindle’s functionality speaks to one of the key issues in the privitization of technological resources, which is that notions of ownership change dramatically as we transition from analog to digital technologies.

For example, I buy a book, that copy of the book is mine. I can read it aloud to whomever I choose (as long as my reading sessions aren’t a commercial enterprise) or lend it to others or even sell it. If I buy a Kindle and then purchase an e-book through it, my relationship to the “things” I have paid for is more complex. I may own the physical device, but through its End User Liscence Agreement (EULA) I am bound by any number of ownership claims that Amazon retains (for themselves or on behalf of content copyright holders) on the technology. Not owning a Kindle myself, I don’t know what these restrictions are, but they obviously include Amazon’s right to terminate the text-to-speech functionality of “my” e-book. Perhaps I am allowed to sell the device, but not the e-books that are loaded onto it. I could loan my Kindle to a friend, but certainly could not loan an e-book to anybody else’s Kindle.

As a starting place, I want to assert that there are at least two basic reasons why rights consumers maintain for technology have become much more tenuous in the digital era:

1. The technology itself is almost always proprietary. We all know how book technology works and could make some version of one ourselves, but how a Kindle works is Amazon’s intellectual property. In this sense, when it comes to digital technologies, the line between the “technology” and the “content” is much less clear (and sometimes nonexistant) than in the analog world.

2. The act of accessing information of any kind via digital techological devices inherrently means making a copy of that information. Loaning a CD to a friend means I will have to wait to get it back before I listen to it again, but sharing an MP3 could simply means copying the file on to another hard drive. Of course, analog media technologies from the Xerox to the tape deck reduced the level of effort required to copy content (and in some cases this was very scary to media copyright holders), but for pretty much any digital technologies, this act of copying is so intrinsic to the core use of the device that it can be performed with almost no effort.