August 5, 2009 | By corynne mcsherry

The Kindle Lawsuit: Protecting Readers From Future Abuses

Not surprisingly, Amazon’s recent deletion of George Orwell’s 1984 and Animal Farm from its customers' Kindle e-book readers has sparked a class action lawsuit by Kindle users. After all, not only was the remote deletion “stupid,” as CEO Jim Bezos admitted, it also appears to have been a violation of the terms of service for Kindle that Amazon itself drafted.

We’d love to see what a judge or jury would have to say about the situation. Lead plaintiff Justin Gawronski’s story of harm is particularly compelling: he not only lost his copy of 1984, but also the annotations he had been making for a class. (So much for e-books as the future of education -- we bet Justin wishes he had just picked up a copy from his local bookstore and scribbled in the margins). If, however, the prospect of a settlement or judgment looms, there are some things Justin and his fellow plaintiffs might demand to protect not only current Kindle owners, but future ones as well.

As we see it, the heart of the problem is that customers who shell out $300 for a Kindle are not getting the product they expect: a device that will let them do electronically most of the things they expect to do with physical books -- e.g., read them (and re-read them), mark them up, carry them around, and share them with others -- without worrying that a bookseller might reach through and not only delete their books but also monitor and record their activities. It is this combination of powers (tracking, recording, erasing) that makes Amazon look like Big Brother -- and made this act particularly ironic.

The best thing that Amazon could do to match consumer expectations and preserve the basic freedoms and rights that we have with books and magazines and newspapers in the physical world would be to remove all digital right management (“DRM”) restrictions from the content users access through the Kindle and ensure that the device doesn’t otherwise “phone home” to report on readers’ activities. That would allow Kindle users to approximate the rights they would have if they went to a local bookstore or magazine rack, without fear of violating the legal and technical add-ons that the DRM creates. In this case, it would have allowed Gawronski to backup his copy of 1984, with annotations, and thereby protect himself from Amazon’s foolish decision.

If that’s not possible at this juncture -- though we remain confident that eventually book DRM will fall away just as music DRM has -- any settlement or court order arising from this debacle should require the following:

  1. Leave Content on Kindles Alone: Amazon should permanently and irrevocably disable the "feature" that gives Amazon the ability to control, access and delete the books, newspapers and other content its users have purchased. (The Free Software Foundation has launched a petition calling on Amazon to do this.)
  2. Transparency and User Knowledge of Kindle Activities: Amazon should be transparent about both the information it tracks and the control it retains for the Kindle. This involves two things:
    1. Affirmative Disclosure. Amazon should disclose in detail what tracking and control it retains. Right now Amazon’s terms of use are very broad -- giving Amazon nearly carte blanche to track its users-- but also very vague about what exactly Amazon is tracking and what it is doing with the information it collects. For example, Amazon should be required to tell Kindle users, on a regular basis, what information is being sent to the mothership. (Amazon could offer an opt-out option for those who are not interested in this information.) This is exactly what many "crash reporting" tools already do. And it would prevent customers from being surprised to learn that Amazon is tracking their reading habits.
    2. Allow Inspection. Amazon should also eliminate the restriction on circumventing security features that currently threatens the ability of readers to know what their own devices are doing and reporting about their activities. Right now, consumers don’t know -- because Amazon has refused to disclose -- what other creepy, unreasonable or dangerous “features” Amazon has hidden inside their Kindles. Not only should Amazon tell users, but users should be able to check for themselves to ensure that Amazon isn’t engaging in any “mission creep” and also to protect themselves against security flaws and vulnerabilities that are all too common in digital devices.
  3. Limit Disclosures: Amazon should change its privacy policy, which currently gives it broad rights to disclose the information it collects about Kindle users to the government or others without a warrant or a court order. Amazon’s policy should better reflect the strong privacy protections that bookstores have long fought for and won.
  4. Notice of Changes: Amazon should commit to advising customers of any changes in the terms of service by showing a pop-up screen describing the change, in plain language whenever the device first connects to Amazon after a change.
  5. Sales Are Sales: Amazon should respond to customer expectations by adding language to clarify that all books, magazines and newspapers are not licensed but rather sold, and may be disposed of at the purchaser’s discretion.
  6. No Forced Updates: Amazon should allow Kindle users to choose which "updates" they wish to install and should ensure that all security and other core functionality updates work with all previous versions of the software.
  7. User Control of User Creations: Amazon reserves the right to discontinue at any time the “Service” that allows Kindle users to backup their annotations and highlights, which means Kindle users could lose those notes. For some users, these annotations could be as valuable as the books themselves. Amazon should provide users with the option of creating a personal backup copy of their annotated books for their laptops.

None of these measures is a perfect solution on its own, and several arguably go beyond the specific harm caused by the 1984 debacle. Still, taken together, they would help reassure buyers of e-books that they are getting what they expect: a text that is as good or better than its paper counterpart. We’ll be watching the Kindle lawsuit closely to see how many of these are implemented as part of a settlement or court decision. Better yet, Amazon should go ahead and implement them on its own.


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