Jeff Duntemann's Contrapositive Diary Rotating Header Image

July 19th, 2009:

Big Brother’s Ebooks

An interesting thing happened the other day: People turned on their Kindles to discover that several books they had purchased were just…gone. Amazon had without warning or explanation reached down the devices’ Whispernet connections and wiped all traces of the books, which were by George Orwell. I’m not sure anyone has ever spelled “irony” more clearly than this.

Amazon refunded the full price of all books to all those who had purchased them, of course, or this would have been theft. (Many think, with some justification, that it was still theft.) Yea, the world of Copyright Deathwish is getting stranger all the time.

What I find intriguing is that there are two versions of the story out there:

  1. The rightsholders of the books changed their minds and decided they didn’t want ebook editions on the market, and demanded that Amazon pull them.
  2. The people who licensed the ebook editions to Amazon did not have the right to do so.

Story #1, if true, reflects badly on both Amazon and the Orwell rightsholders. Books are published under contract, and if the author/rightsholder can negate a contract simply by changing his mind, it wasn’t much of a contract. On the other hand, if Amazon won’t hold a rightsholder to the terms of a contract, Amazon isn’t much of a publisher.

Story #2, if true (and I think it’s more likely) reflects badly on copyright law as we have it here in the US. It’s entirely possible that Amazon did what it considered due diligence on the purported rightsholders and decided that they were legitimate. Alas, US copyright law makes it diabolically difficult (and in many cases, simply impossible) to determine who the legal rightsholders to a work actually are. Rights change hands all the time, especially for popular works that have been around for a few decades, and double especially works by authors now deceased. Someone who once had rights to a work may not currently have them, or the rights may have been divided by medium, or the rights may be under dispute between heirs and former licensors, or among the heirs themselves.  Michael Jackson bought the rights to the Beatles’ canon in the US years ago; those rights are now “in play,” as they say.

The core of the problem is that there is no public record of ownership for copyrights, as there is for “real” property, like land or even cars. And in today’s environment of cheap server space, there’s no reason for that to be true. It should be possible to trace ownership of IP from the date it was registered down to the current day, with a legal requirement that changes in ownership be recorded, for copyright to be enforceable. There should be no ambiguity whatsoever about who owns what works in what media, and that record should be available to the general public. As long as it is not, incidents like this will continue to occur.

Amazon has pledged that they won’t do this again, but the damage has been done, both to Amazon’s Kindle system and to the idea of copyright itself. People who bought and paid for a book in good faith had that book taken away by copyright holders without notice or explanation. It may have been legal in the narrowest sense of “legal,” but that doesn’t matter. The incident adds yet another brick to a growing edifice of public opinion seeing copyright holders as arrogant, greedy bullies who can harass individuals on little or no evidence, and take back what they’ve offered to the public on a whim. Whether the perception is true or not (and to what degree) doesn’t really matter. Copyright, especially in an era of fast pipes and massive electronic storage, operates primarily on the honor system, which requires honor on both sides, and a legal framework making it possible for that honor to flourish. No honor, no copyright–and we’re much father down that road than most people think.