Life, Law and Tech

In the world of the Internet and digital content, amazon.com (Amazon) is a big one. Amongst other services, it facilitates distribution of e-books and develops and markets the necessary hardware and software to read them, embodied in its Kindle device. Periodically the device synchronizes with the end users’ account. It is connected through a service called Whispernet to manage content. This managing was supposed to entail the possibility to download content to the Kindle device. However in the summer of 2009 the electronic commerce giant demonstrated a different kind of management that left many people thoroughly astonished.
In an effort to conform to the rights holders’ demands, Amazon pulled two works by George Orwell from its online distribution service. However, in a tragic delusion of totalitarian grandeur, Amazon found it appropriate to remove the books from the accounts of users that bought the book as well, which in turn led to the removal of the books from the Kindle devices owned by those users. The irony that one of the works removed was Nineteen Eighty-Four should not be lost on those who are familiar with the book.
What followed after this opportunistic course of action was a massive uproar amongst consumers, media and legal experts. Amazon quickly cried its crocodile tears and offered an apology to its users. Despite the refund that accompanied the removal, there is something utterly wrong and unjust about Amazon’s behavior. After admitting removing the books from the Kindles was wrong, they remained ambiguous on when they would remove or not. In my opinion, Amazon is liable for the removal, regardless the refund given. Digital content providers should never be allowed to unilaterally remove content from devices owned by end users.

From this specific case there are a few things to note. First of all, digital content providers lack any reasonable ground to involve the consumer in their legal misconduct. Publisher MobileReference was the cause of the problem. As a third party it had offered the books through Amazon’s distribution network, although it did not hold the necessary licenses for the books to be sold digitally in the geographic area involved.
The average consumer is not likely to comprehend the complex structure of intellectual property rights involved in the business of content distribution. And for all means and purposes, such understanding should neither be necessary, nor can it be demanded. A dispute between rights holder, publisher and distributor does not concern the end user. He or she might be unknowingly holding an unlicensed copy of a work on a device, but by buying the book from an otherwise reputable source, the consumer can reasonably assume that the acquired copy is legal. There is no obligation to the consumer, who is in good faith, to examine the legality of the offered works. Instead, it is the vendors’ duty to warrant the reasonable assumption and keep the buyer outside of the legal conflict. In this respect vendor liability warrants against careless conduct in selling digital content, and warrants consumer rights.

Secondly, the End User License Agreement and subsequent license agreements between Amazon and its customers did not facilitate the removal of the books from the users' accounts. Au contraire, they promised "the non-exclusive right to keep a permanent copy of the applicable Digital Content".
But even if they did, Amazon should still not be allowed to do so, and any clauses claiming such authority should be void by default. It is important for the end user to obtain some kind of finality. If the possibility of retraction looms above the agreement like the Sword of Damocles, it leads to great and undue uncertainty. But also from a perspective of ownership content providers need to refrain from interference.
When a book is purchased from Amazon, it is placed in one of the possible file formats on the physical memory of the Kindle. It occupies a space on the device owned by the end user, much like a book on a shelf. This space is the private domain of the user. No subjective right allows for an intrusion of this domain by means of a unilateral action taken by the vendor. This holds especially for rights as distant from the end user as a third party’s intellectual property right, but also for directly related situations. For instance, when a user fails to pay for an e-book, there are legal remedies aplenty to relieve the vendors’ burden.

Amazon was eventually sued over its devilry. In the settlement that followed, Amazon stated a few conditions under which it might still remove content: if a court or regulatory body orders it, if doing so is necessary to protect consumers from malicious code, if the consumer agrees for any reason to have the e-book removed, or if the consumer fails to pay.
The only condition that can be accepted is a court order. However, it is hard to see why a court would order a removal from the devices requiring a mechanism as the one built in with the Kindle. As already argued above, in case of a rights dispute, the vendor should warrant the consumers position. All other causes should be dealt with case by case. The other claims lack either legality or proportionality to justify the removal; less absolute measures or alternatives outside the remote digital management scope should be taken. Of course when parties agree to the removal there is nothing to hold them back. However this should be agreed upon in every individual instance since a blanket authorization limits users’ rights too rigorously.

Unduly dragging the end user into a legal conflict, and trespassing into the digital private domain should be avoided at all times. Of course, removal is opportune when a court orders it. Then again that is a whole different, non-unilateral story. And because there are sufficient alternatives for solving issues, unilateral removal of digital content by the digital content provider should never be allowed.
But they could always ask… Kindly.