Gawronski v. Amazon: Kindle Class-Action Lawsuit

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Amazon KindleWhen Amazon controversially deleted copies of George Orwell’s Animal Farm and 1984 from its Kindles back in July, the ironic parallels between fact and fiction sent the Internet collectively scrambling to brush up on its literary quips. Not a bad thing, at least from the view of librarians and English teachers. And at the end of it all, the Internet seemed to have won out: Amazon vowed to never carry out such a recall again.

But life doesn’t tie up as neatly as a novel. Individual acts of rebellion inevitably failed against Orwellian fictional dictatorships, but Orwell’s worlds also lacked the class-action lawsuit. One such suit has already been filed against Amazon, alleging Amazon’s actions violated its terms of service and state unfair competition laws, and constituted fraud under 18 U.S.C. § 1030 (the Computer Fraud and Abuse Act), trespass to chattels, breach of contract. Putting aside its rather humorous facts–the main class representative, a Michigan high school student, alleges that the deletion of his electronic copy of 1984 rendered useless his class notes, as they were linked directly to the ebook—this lawsuit has the potential to reach far beyond ensuring that Amazon never repeats such a mass deletion.

Most of the initial complaints against Amazon’s deletion focused on how Amazon had violated consumer expectations regarding what happens to a book after it’s been sold. Without the cooperation of the buyer, publishers normally cannot recover physical copies of books once sold, no matter what the reason for the recall. Amazon’s deletion, however, highlighted the fact that this practical limitation doesn’t exist with an ebook. Some commentators have pointed out that this technological advance allows for stronger enforcement of copyright protections. Amazon did not have the legal right to sell those ebook copies of 1984 and Animal Farm, so they were committing copyright infringement by offering them to Kindle users. Since the sales were illegal, first-sale doctrine would not have protected their unwitting customers from copyright infringement charges. Deletion is different from what would be done if the book copy had been made of paper, but perhaps changing technology should also change expectations regarding methods of law enforcement.

On the other hand, others including the parties in the class-action suit assert that Amazon violated its own terms of use with the deletion. Amazon has taken pains to emphasize that its Kindle is just updating the traditional book for the Computer Age, not changing the mode of how books work. Ebook buyers were told that just as with a physical book, once they bought an ebook, it was theirs for life. If that isn’t true and Amazon is going to take advantage of an ebook’s unique capabilities, then it should have made that clear to its customers.

And as if copyright and contractual issues weren’t enough, the lawsuit’s complaint also expressly asks the court to declare that Amazon has no legal right to delete ebooks once they’re sold, since Amazon couldn’t very well order people to give up physical books they’ve purchased. More than a kind of equality declaration for ebooks and physical books, such a ruling could potentially hamper any content provider’s ability to distribute material online without incurring liability if that content is later removed. It would have grave implications for the efforts of companies such as Google to encourage cloud computing and other technologies where data is stored on the servers, and under the control, of third-parties who then allow users to access that data remotely.

Until now, the book industry has been spared the contentious litigation that technological advances have brought to the movie and recording industries, largely because ebooks have not done well as a commercial product. But just as ebooks seem to be finally taking off, so have the legal questions surrounding them. The Kindle is no longer a mere geek trophy gadget, but has come of age as a focal point of legal, technological and social debate.

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August 8th, 2009 at 7:00 pm

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  1. […] with any annotations the customers made on their old versions. This solution may make the Gawronski lawsuit moot. But more importantly, it’s turned the Kindle Orwell debacle into yet another question about […]

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