Let's give Amazon the benefit of the doubt—its explanation for why it deleted some books from customers' Kindles actually sounds halfway defensible. Last week a few Kindle owners awoke to discover that the company had reached into their devices and remotely removed copies of George Orwell's Nineteen Eighty-Four and Animal Farm. Amazon explained that the books had been mistakenly published, and it gave customers a full refund. It turns out that Orwell wasn't the first author to get flushed down the Kindle's memory hole. In June, fans of Ayn Rand suffered the same fate —Amazon removed Atlas Shrugged, The Fountainhead, and The Virtue of Selfishness, with an explanation that it had "recently discovered a problem" with the titles. And some customers have complained of the same experience with Harry Potter books. Amazon says the Kindle versions of all these books were illegal. Someone uploaded bootlegged copies using the Kindle Store's self-publishing system, and Amazon was only trying to look after publishers' intellectual property. The Orwell incident was too rich with irony to escape criticism, however. Amazon was forced to promise that it will no longer delete its customers' books.
Don't put too much stock in that promise. The worst thing about this story isn't Amazon's conduct; it's the company's technical capabilities. Now we know that Amazon can delete anything it wants from your electronic reader. That's an awesome power, and Amazon's justification in this instance is beside the point. As our media libraries get converted to 1's and 0's, we are at risk of losing what we take for granted today: full ownership of our book and music and movie collections.
Most of the e-books, videos, video games, and mobile apps that we buy these days day aren't really ours. They come to us with digital strings that stretch back to a single decider—Amazon, Apple, Microsoft, or whomever else. Steve Jobs has confirmed that every iPhone routinely checks back with Apple to make sure the apps you've purchased are still kosher; Apple reserves the right to kill any app at any time for any reason. But why stop there? If Apple or Amazon can decide to delete stuff you've bought, then surely a court—or, to channel Orwell, perhaps even a totalitarian regime—could force them to do the same. Like a lot of others, I've predicted the Kindle is the future of publishing. Now we know what the future of book banning looks like, too.
Consider the legal difference between purchasing a physical book and buying one for your Kindle. When you walk into your local Barnes & Noble to pick up a paperback of Animal Farm, the store doesn't force you to sign a contract limiting your rights. If the Barnes & Noble later realizes that it accidentally sold you a bootlegged copy, it can't compel you to give up the book—after all, it's your property. The rules are completely different online. When you buy a Kindle a book, you're implicitly agreeing to Amazon's Kindle terms of service. The contract gives the company "the right to modify, suspend, or discontinue the Service at any time, and Amazon will not be liable to you should it exercise such right." In Amazon's view, the books you buy aren't your property—they're part of a "service," and Amazon maintains complete control of that service at all times. Amazon has similar terms covering downloadable movies and TV shows, as does Apple for stuff you buy from iTunes.
In The Future of the Internet and How To Stop It, Harvard law professor Jonathan Zittrain argues that such "tethered" appliances give the government unprecedented power to reach into our homes and change how our devices function. In 2004, TiVo sued Echostar (which runs Dish Network) for giving its customers DVR set-top boxes that TiVo alleged infringed on its software patents. A federal district judge agreed. As a remedy, the judge didn't simply force Dish to stop selling new devices containing the infringing software—the judge also ordered Dish to electronically disable the 192,000 devices that it had already installed in people's homes. (An appeals court later stayed the order; the legal battle is ongoing.) In 2001, a company called Playmedia sued AOL for including a version of the company's MP3 player in its software. A federal court agreed and ordered AOL to remove Playmedia's software from its customers' computers through a "live update."
The digitization of media doesn't necessarily make it more likely for books to get banned. Art is banned across the world for all kinds of reasons. In the United States, the usual justification is copyright infringement. Earlier this month, for instance, a judge issued an injunction against the publication of a Swedish author's unauthorized "sequel" to J.D. Salinger's The Catcher in the Rye. For other examples, take a look at Stay Free! magazine's collection of "illegal art": You'll find Todd Haynes' 1987 film Superstar: The Karen Carpenter Story, which played at several film festivals before all copies were ordered recalled and destroyed (Haynes hadn't obtained legal clearance for the music in the film); a CD's worth of songs shot down due to allegations of unlicensed sampling; and lots of parody comics—including of Family Circus and Mickey Mouse—that never saw the light of day.
The difference between today's Kindle deletions and yesteryear's banning is that the earlier prohibitions weren't perfectly enforceable. At best, publishers that found their books banned by courts could try to recall all books in circulation. In 2007, Cambridge University Press settled a lawsuit with Khalid bin Mahfouz, a Saudi Arabian banker who sued for libel over a book that alleged he'd funded terrorism. Cambridge agreed to ask libraries across the world to remove books from their shelves. But the libraries were free to refuse. If bin Mahfouz had sued over a Kindle book, on the other hand, he could ask the court not only to stop sales but also to delete all copies that had already been sold. As Zittrain points out, courts might consider such a request a logical way to enforce a ban—if they can order Dish Network to disable your DVR, they can also tell Amazon or Apple to disable a certain book, movie, or song.
But that sets up a terrible precedent. Amazon deleted books that were already available in print, but in our paperless future—when all books exist as files on servers—courts would have the power to make works vanish completely. Zittrain writes: "Imagine a world in which all copies of once-censored books like Candide, The Call of the Wild, and Ulysses had been permanently destroyed at the time of the censoring and could not be studied or enjoyed after subsequent decision-makers lifted the ban." This may sound like an exaggeration; after all, we'll surely always have file-sharing networks and other online repositories for works that have been decreed illegal. But it seems like small comfort to rely on BitTorrent to save banned art. The anonymous underground movements that have long sustained banned works will be a lot harder to keep up in the world of the Kindle and the iPhone.
The power to delete your books, movies, and music remotely is a power no one should have. Here's one way around this: Don't buy a Kindle until Amazon updates its terms of service to prohibit remote deletions. Even better, the company ought to remove the technical capability to do so, making such a mass evisceration impossible in the event that a government compels it. (Sony and Interead—makers of rival e-book readers—didn't immediately respond to my inquiries about whether their devices allow the same functions. As far as I can tell, their terms of service don't give the companies the same blanket right to modify their services at will, though.)
But these problems are bigger than a few select companies. As Zittrain points out, they come about because of the law's inability to deal with tethered technology—devices that are both yours and not yours, in your possession but under the orders of companies far away. Amazon's promise to do better next time is going to be pretty hard to keep. The company says it won't delete any more books—but it hasn't said what it will do when someone alleges that one of its titles is libelous or violates someone else's copyright. This is bound to happen sooner or later, and the company might find itself deleting books once more. To solve this problem, what we really need are new laws.