Digging Deeper Into Amazon’s Orwellian Moment

When media historians write the history of DRM they may well devote a whole chapter to the day that Amazon customers awoke to find that their Kindle editions of “1984” had vanished into a memory hole and that Big Brother Bezos had apparently turned George Orwell into an unperson.

You would be hard pressed to invent a more apt or ironic example of the dangers of DRM. Surely this will be the incident that finally raises consumer awareness of the risks involved in buying DRM protected media.

And yet, after digging deeper into this story, I’m not convinced that this was a DRM issue at all. At least, not in the truest sense.

Further, this incident raises a host of interesting rights related issues that have largely gone unexplored in the days since.

Consider the following:

  • The safety of your personal media in the cloud: It’s very likely that DRM wasn’t even used on the Orwell ebooks that were deleted. Despite that fact, Amazon still has the ability to delete Kindle books from customers’ accounts and remotely from customers’ Kindle devices. This highlights the dangers of storing media files on a cloud based service.

    Do you backup your media to an online storage service like Mozy or SugarSync? Your backups may be secure from disaster, but are your personal media files secure from the copyright police? Who needs DRM when it’s possible to reach into a consumer’s personal storage space and delete anything that’s there?

  • Amazon’s control (or lack thereof) over its own marketplace: Anyone can submit books for sale on the Kindle. Unlike Apple’s App Store, there is no oversight or review. As a result, we’ve seen many examples of obvious copyright violations available in the Kindle store, the most notable involving Harry Potter books that occasionally pop up at bargain prices.

    Even if Amazon did review every book submitted for sale in the Kindle store, there would be no obvious way for the company to determine which books might be in violation of copyright.

    As if to highlight this problem, another edition of “1984” was available in the Kindle store throughout the day on Friday and into Saturday — that edition has since been pulled and a new (and more expensive) edition published by Houghton Mifflin Harcourt is now available. Presumably that edition is authorized, but there’s no way to know for sure. Price and the name of a well known publishing house are no guarantee of rights, because of …

  • The tangled mess of territorial rights: Traditionally book rights have been sold on a territorial basis. The rights to a single book can be owned by many different publishing houses around the world with each publisher owning the exclusive rights to release the book in a specific geographic territory.

    For older books territorial rights are complicated by differing copyright laws around the world. A book may be in the public domain in one territory while still being covered by copyright in other parts of the world. That’s the case with “1984”. While Orwell’s works are still under copyright in the U.S., the book has moved into the public domain in Australia (be careful what you download, who knows what international treaties you might be violating).

    This isn’t just a problem for book publishing — the same problem exists for nearly every other form of media. Territorial rights make it practically impossible to build a global digital marketplace for any type of media.

    This is also very likely one of the main reasons that the Kindle is currently only available in the United States.

  • The tangled mess of digital rights: Just because a publisher owns the print rights for a given territory does not guarantee that the same publisher also owns the digital rights. This is especially true for books that were published prior to the 2001 rulings in the lawsuit between the Random House vs. RosettaBooks. In that case, U.S. District Court Judge Sidney Stein ruled against Random House finding that the publisher’s standard contract that enabled it to “print, publish and sell the work(s) in book form… does not include the right to publish the works in the format that has come to be known as the ebook.”

    Most publishers have since closed the digital loopholes in their contracts, but digital rights remain a big question mark for a substantial number of classic books that have not yet moved into the public domain.

    As is usually the case where a void exists in the marketplace, pirates have moved in to fill the gap, leaving the individual copyright holders (whoever they may be) to pursue take down notices.

There’s so much more to this story than just a simple DRM failure. And yet, if all we get out of this is a wider understanding of the dangers of DRM, I’m fine with that (file under: by any means necessary).

In the meantime, Amazon has promised that it won’t delete any more ebooks — at least not until the Authors Guild demands they do.

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