Amazon Sued Over Kindle Deletions

The first lawsuitsover Amazon's mass deletions of Orwell's 1984 and Animal Farm from the Kindle are now filed.  That didn't take very long.  The two plaintiffs in the class action lawsuit are Justin Gawronski of Michigan and Antoine Bruguier of California.  The suit is filed in federal district court in Seattle against Amazon.  Garonskui bought 1984 for his Kindle 2 as part of a summer reading project.  He attached a large number of notes to his copy, and though Amazon keeps the annotations in a separate file, they aren't necessarily understandable or useful without the content to which they are attached.  Gawronski noted sections of the book as anyone would with space in the margins.  The marginalia doesn't mean as much without the text.  Bruguier's experience included a customer service session where Amazon couldn't explain why the book was deleted and following it up with another communication explaining the deletion due to licensing issues.

The lawsuit claims a breach of contract and violations of Amazon's terms of service.  Generally, an Amazon customer using the Kindle as a platform for reading e-books can maintain a permanent copy of the title and can have unlimited access.  DRM prevents copying, printing, and other limitations on viewing or sharing the title outside of the Kindle reader.  The lawsuit also alleges violations of the Washington state Consumer Protection Act.

Amazon apologized for deleting the books shortly the incident.  Jeff Bezos, Amazon's CEO, called the move stupid and thoughtless and said that any future incidents will be handled differently.  It was the "delete first and explain later" mentality that rankled customers despite the fact that Amazon completely refunded all purchases.  That last point begs the question of exactly what are the damages suffered by the two plaintiffs and the potential class?  It can't be for the cost of the books.  What value can be assigned for the inconvenience of the e-book disappearing from a Kindle?  There is also a question as to whether the deletion even violated the terms of service when Amazon wasn't authorized to sell the books in the United States in the first place.  This suit is really about what rights customers can expect with digital books, and possibly other digital materials. 

That's the fuzzy, amorphous place where content providers try to accommodate customers with products that are no longer physical.  Because computer files are easily duplicated, the market seems to have this problem of balancing customer rights with protecting the content.  Some strange attitudes have developed out there over the value of digital files.  The music industry, for example, is waging a fight at the Copyright Office over whether consumers can break DRM on files they purchased from defunct vendors.  Every three years the Copyright Office examinesand grants exemptions from various DMCA restrictions where appropriate.  One such request highlights the problem of digital "ownership."  What happens to consumer files when the servers go dark?

This is a real problem.  Yahoo, Microsoft, and Wal-Mart each had music stores they shuttered.  Each sold files that required server authentication.  The stores went dark and after a time the files in consumer hands no longer worked.  Steven Metalitz, representing the MPAA, the RIAA, and other rightsholders responded to the idea of customer ownership:

"We reject the view that copyright owners and their licensees are required to provide consumers with perpetual access to creative works. No other product or service providers are held to such lofty standards. No one expects computers or other electronics devices to work properly in perpetuity, and there is no reason that any particular mode of distributing copyrighted works should be required to do so."

This essentially strikes at the heart of the Amazon deletions.  There is the practical problem of who really owns this stuff in spite of what the terms of service say.  Unlike some music services that have abandoned DRM, Amazon tightly controls what happens to the electronic product they sell.  Consumers have won the right to back up their music files by burning them to CD or simply archiving them to hard drives or servers.  At that point the burden of backing up digital files falls to the consumer.  E-books haven't come this far.  Amazon and the publishers control it all.  We have to have faith that Amazon will come through for us in ten years when the Kindle20 comes out.  I'm not so sure that the majority of the general public is willing to make that leap.  It took about 20 years or so for most legal professionals to accept the idea that Westlaw and Lexis weren't transient.  That includes the shock of both services coming under the control of major corporations not based in the United States.  While I don't think the plaintiffs in these suits are going to get anywhere with their facts, these suits are helpful in defining rights and shaping the nascent e-book market.  They also help to give fodder for future legislative battles over consumer rights.  [MG]