digital books: when it rains, it pours.

The recent release of David Shield’s book Reality Hunger: a Manifesto (see here and here) comes on the heels of increasing controversy in Europe over Helene Hegemann’s literary debut Axolotl Roadkill (see here). Hegemann is already caught up in an intellectual property scandal; we’ll see what happens to Shields. Both books take a recombinant, “remix” approach to writing, cobbling together excerpts of other people’s writing with their own bits of text. How very contemporary. The idea of remixing as a unique mode of cultural production and the attendant issues of intellectual property that always seem to follow it have now made it into the book market.

While consumers read literary mash-ups like last year’s Pride and Prejudice and Zombies, media giants like Amazon, Sony and Barnes & Noble are competing to get the reading public hooked on portable hand-held digital reading devices: Kindle, Reader and Nook. Consequently, the publishing industry is already embroiled in typical efforts to protect corporate property: conflict over ebook file formats and which devices can read which formats, as well as concern over the proliferation of ebooks as a hot commodity for file sharing.

At the same time, but getting less media attention, has been Google’s ongoing commercial/legal negotiation with various publishers, universities and other authorities as they expand the ever-growing Google Books project. The project makes a massive amount of material available to the public, online, much of it for free, but many books and other printed materials are still not fully usable or readable thanks to pressure from publishers.

There are many things that are controversial about Google Books. For one, why should we trust a private corporation with the next generation of media services we would normally expect from public libraries? If Google cuts a deal with publishers, much of the content would likely become pay-to-play – and then, publishers would have some say in the cost and accessibility of their products. Even if Google was committed to keeping user access free and open, other issues might arise, too.

Nicholas Sarkozy, Jean-Noël Jeanneney and others close to the French National Library have argued that Google books will only speed the trend of cultural globalization as Americanization, and place control of books belonging to France’s national “patrimony” in non-French hands. Other times, their line seems to be pan-European. But whether they argue for a French digital library (like Gallica), or a European Union version (like Europeana), the point is to mount a public, European challenge to American corporate digitization projects like Google’s.

These varied anecdotes suggest that we’re witnessing an interesting moment of transformation in books, and in the ways that people talk about, think about, buy and sell, and fight over, books. With so much intellectual content and so much money at stake, this dialogue, now fairly widespread, will only get hotter.

Fight for your rights? The problem with “copies.”

Today The New York Times published this story about “backlist titles,” books that were once top sellers in paper format, which may or may not be reissued today as ebooks. As publishers work to reformat and reissue such titles, the question of who owns the rights to reproduce these titles – authors or publishers – explodes back onto the scene. The fact that a change in format (from paper to electronic books for example) compels a new round of copyright battling is interesting, raising many questions: is the electronic version a separate “work” with a separate copyright as opposed to the paper version, or is the electronic version merely a copy of the paper work, which therefore puts the original copyright into play?

Behind this copyright question, a deeper question lurks: what is a copy? Obviously the copy is not identical to the original; a copy must be different, a unique object. But on the other hand, how different is too different? At what point does an object become so different from the original that it no longer counts as a copy? This ontological question about copies (or simulacra) and originals (a la Benjamin and Baudrillard), difference and repetition (a la Deleuze), etc., may seem cute or sophistic, but it could be a real thorn in the side of more practical, legal, ethical and political debates about the right to make copies. While I’m on a roll referencing European philosophers: might this problem of the copy be the Derridean lynch-pin which, when pulled out, will cause the whole copyright house of cards to deconstruct (self-destruct)? If we can’t define what a copy is, how can we tell if a copy has been made? How can we tell if an illegal copy has been made, or profited from?

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.

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.