How Amazon handled a recent illegal book upload

Much has been said, often, about how Amazon once automatically deleted, from Kindles, books that had been illegally uploaded -- and Jeff Bezos, in his forum apology, termed it "stupid, thoughtless" and a "self-inflicted" problem for which he said they deserved the criticism they got.

  In a later court hearing, Amazon gave legal assurances they'd not be doing that again, and before the hearings, Communications Director Drew Herdener had said they were changing their systems so that this situation wouldn't be repeated.

  Despite all this, hardly a day passes without online discussions including statements from many who are eager to believe and to tell others, that Amazon will delete books when it feels like it, which is, at this point, a fantasy, since they are a business interested in survival.


In a story early in September that didn't get much exposure, The Australian's Fran Foo wrote, "Amazon caught by fake e-book scam: Kindle users refunded for bogus Jamie Oliver title."   I'll take the liberty of quoting quite a bit of it, as I'd rather not paraphrase here and the story is linked for further reading.

'AMAZON has been forced to remove a fake Jamie Oliver title from its Kindle Australia e-reader bookstore.

The internet giant didn't realise it had been duped when it added the so-called book, priced at $US3.99, to its online store.

The Kindle edition of The Naked Chef 2 Recipes, purportedly by Oliver, has been available in Australia since at least January.

A spokeswoman for Oliver's local publisher, Penguin Group, said there was no such title by the celebrity chef.

Amazon admitted a "third party" who didn't have rights to sell the book was behind the problem.

It sent emails to affected customers in July informing them of the breach and offering a refund.

"We are writing to inform you that we need to refund your purchase of the book Jamie Oliver The Naked Chef 2 Recipes," the Amazon email said.

"This book was added to our catalogue by a third party who we now believe did not have the rights to make the book available for sale.

"We will be removing the book from our servers, making it unavailable for re-downloading from your archived items.

"Any copies you already have on your Kindle devices will not be removed, but you may choose to remove any such copies yourself."  [Emphasis mine]

Seattle-based Amazon spokeswoman Stephanie Mantello declined to say how long the book had been on sale, how many copies had been purchased or what steps the company would take to ensure the incident was not repeated.

She declined to reveal how and when the issue first came to Amazon's attention. "We don't disclose details of private conversations with partners."

It is unclear how the third party slipped through Amazon's screening process, but Ms Mantello said there were many ways of placing e-books in Amazon's Kindle catalogue." '

The rest of the article, explaining how e-books are placed in the Kindle catalogue plus a bit of history of a previous book scam involving a purported Oliver book are at The Australian's news site.
  Also, any interested in how the original scam developed can read about it at Snopes.


Kindle 3's   (UK: Kindle 3's),   DX Graphite

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Check often: Temporarily-free late-listed non-classics or recently published ones
  Guide to finding Free Kindle books and Sources.  Top 100 free bestsellers.
    Also, UK customers should see the UK store's Top 100 free bestsellers.

Amazon settles lawsuit over remote-deletion of '1984' - UPDATE4

Amazon settles lawsuit over deleted Kindle copy of '1984.'

UPDATE to Student sues Amazon despite finding 1984 notes (and despite a Good Samaritan type having given him -- after hearing of his plight -- a copy of the same 'location-numbered' book previously downloaded DRM-free from Feedbooks.com).  The lawsuit was based on the principle of the remote deletion and to get legal assurances that this kind of remote deletion wouldn't occur again under those circumstances, as had been said by Amazon spokesperson Drew Herdener in an e-mail message to Brad Stone of The New York Times, but clarifying what any other 'circumstances' might be.  That more vague actual statement was:

'Amazon effectively acknowledged that the deletions were a bad idea. “We are changing our systems so that in the future we will not remove books from customers’ devices in these circumstances,” Mr. Herdener said. '

  The linked article from 7/31/09 was a summary of what went before, expanding on what was described in earlier articles (1)  and  (2) on the Amazon '1984' debacle.

Tech Flash's Eric Engleman

' Now Amazon has settled the lawsuit with Gawronski and a co-plaintiff. As part of the deal, which awaits court approval, Amazon said it "will not remotely delete or modify" works on Kindles, with some exceptions.

Here's an excerpt from the settlement document (pdf, 9 pages) which was filed Sept. 25 in U.S. District Court in Seattle and just unearthed by TechFlash:

Amazon will not remotely delete or modify such Works from Devices purchased and being used in the United States unless (a) the user consents to such deletion or modification; (b) the user requests a refund for the Work or otherwise fails to pay for the Work (e.g., if a credit or debit card issuer declines to remit payment); (c) a judicial or regulatory order requires such deletion or modification; or (d) deletion or modification is reasonably necessary to protect the consumer or the operation of a Device or network through which the Device communicates (e.g., to remove harmful code embedded within a copy of a Work downloaded to a Device).

As part of the settlement, Amazon will pay a fee of $150,000 to the plaintiff's lawyers, and the plaintiff's lead law firm KamberEdelson LLC will donate its portion of that fee to charity.

Amazon spokesman Drew Herdener had no comment.  Attorney Michael Aschenbrener of KamberEdelson, who represents Gawronski and the other plaintiff, Antoine Bruguier, called it a "great settlement."

"It provides protection for Kindle users and provides confidence to them that the books, newspapers and magazines they purchase will not be subject to remote deletion by Amazon," Aschenbrener said. "It sends a message to digital media purveyors of all kinds that sellers really need to respect users' rights to that content."

Techflash says that since the lawsuit had been seeking class action status, the settlement ends the possibility of a "painful legal situation."

Note that the settlement "awaits court approval."

UPDATE 2, with further addition to this section 10/2/09
  In connection with some who have insisted that the ability to do a remote-deletion be completely removed, the settlement speaks to processes I'd mentioned re dynamic network maintenance involved in subscriptions and other ongoing content-deletion based on time factors; these are taken care of in the document:

' This paragraph does not apply to (a) applications (whether developed or offered by Amazon or by third parties), software or other code; (b) transient content such as blogs; or (c) content that the publisher intends to be updated and replaced with newer content as newer content becomes available.
  With respect to newspaper and magazine subscriptions, nothing in this paragraph prohibits the current operational practice pursuant to which older issues are automatically deleted from the Device to make room for newer issues, absent affirmative action by the Device user to save older issues. '

UPDATE 3
  After reading various articles on this, which didn't seem to take into account details of the actual document, I decided to add here the items below:

'4. Amazon will pay Plaintiffs’ counsel a fee of $150,000, subject to the understanding that KamberEdelson LLC will donate its portion of that fee to a charitable organization that promotes literacy, children’s issues, secondary or post-secondary education, health, or job placement.

 5. Other than as set forth herein, Amazon shall not be liable for any fees or expenses of Plaintiffs or Plaintiffs’ counsel in connection with the Action.

 6. Plaintiffs agree that, to the fullest extent permitted by law, neither this Stipulation nor the fact of it, nor any act performed, nor any statements made publicly or otherwise in responding to concerns raised by Plaintiffs or other users, nor any document negotiated or executed pursuant to or in furtherance of it, is or may be deemed to be or may be used as an admission or concession of, or evidence of any liability or violation of any law by Amazon in any court, administrative agency or other tribunal. '

UPDATE 4 - 10/2/09. Also of interest is the clause:

' WHEREAS, based on current circumstances, Plaintiffs believe they would not likely be able to certify classes under Rule 23(b)(3) because of Amazon’s offer to fully reimburse affected consumers for all Subject Works previously removed by Amazon from Devices and to restore notes and annotations... '

 Also, some eagle eyes have noted what another clause may imply, whether for the near or distant future:

'...does not apply to (a) applications (whether developed or offered by Amazon or by third parties), software or other code...'

Amazon said to be offering '1984' book/notes or credit to affected users - Update

UPDATE 9/5/09 is at the bottom of this entry.

  Gizmodo's Rosa Golijan reports that 'reader Shinobiwan wrote in with an e-mail received from "order-update@amazon.com' reminding Shinobiwan that on July 23, Jeff Bezos made an apology to Amazon customers for "the way we previously handled illegally sold copies of 1984 and other novels on Kindle" and said it was "stupid, thoughtless, and painfully out of line with our principles..."

  The e-mail, signed "The Kindle Team," continued:

  As you were one of the customers impacted by the removal of "Nineteen Eighty-Four" from your Kindle device in July of this year, we would like to offer you the option to have us re-deliver this book to your Kindle along with any annotations you made.  You will not be charged for the book.  If you do not wish to have us re-deliver the book to your Kindle, you can instead choose to receive an Amazon.com electronic gift certificate or check for $30.

  Please email Kindle customer support at kindle-response@amazon.com to indicate your preference.  If you prefer to receive a check, please also provide your mailing address.

  We look forward to hearing from you.

  Sincerely,

  The Kindle Team

Gizmodo isn't in a forgiving mood, as their photo of a Kindle displaying a finger shows.

  The brouhaha has been called "1984Gate" and I gave my take on the dispute July 31.

  Amazon doesn't mention which edition they're offering to re-deliver.  Of the lower-cost ones on product pages which might be similar to the 99-cent copy that wasn't legally sold, I see that:
 1984, published by Synergy House Publications (June 22, 2009) - $1.99, is shown as "not available" -- and another recently uploaded version of the book for $2.98 is also "not available."  The one available is $9.99, so maybe Amazon has authorization to re-deliver the MobileRef book with matching annotations to affected customers after some agreement was reached with the copyright holder.

Just saw the Wall St. Journal report on this.

UPDATE 9/5/09 (No date change being made on posting as updates are not key.)
  I enjoyed the reaction from PCAdvisor's David Coursey, UK, wrote:

" That's good news, and Amazon is known for doing right by customers, but in offering $30 cash compensation, the company probably went a little overboard.
  I'd have offered $19.84. '
(And if Amazon sent me such a cheque, I'd have framed it). "

  The Morning Call reported that "Amazon spokesman Drew Herdener said Friday that the company now has the proper rights to distribute the Orwell books."

  Reuters' Alexei Oreskovic wrote " Amazon spokesman Andrew Herdener said the move was unrelated to the lawsuit, and said the company does not comment on active litigation. "

Student sues Amazon despite finding 1984 notes

Update to earlier articles (1)  and  (2) on the Amazon '1984' debacle

  Note that an interview with the "1984" student will be broadcast on The Kindle Chronicles podcast tonight (Friday).

When the student was last interviewed by The New York Times's Brad Stone about the sudden removal of his copy of '1984,' Stone reported:

' Whether or not people are bothered by these possibilities may in part be a function of their age, as a new generation grows up with an implicit understanding of the rules around these networked devices and learns to live with them.

“I’d like to live in a perfect world where I own this content and can do whatever I want with it,” said Justin Gawronski, a high school student whose copy of “1984” was erased by Amazon, but who recently declined when a lawyer asked him to join a class-action lawsuit over the incident. Mr. Gawronski said, “This is probably going to happen again and we just have to learn to live with it.” '”

That last thought was more relaxed than my own reaction as I feel that Amazon and other e-reader companies have seen that they'd best not do anything like this again, just for what it would do for their bottom line, as customers definitely don't want this done.  Amazon acknowledged this already by changing their systems, they said to Stone, so that this wouldn't happen again on even a book that was found to not be a legal edition, once it had been sold.

Yesterday, the Wall St. Journal reported that Justin has gone ahead with the lawsuit after all (no doubt with the help of some persuasive lawyers).

  Though other newspaper reports didn't mention this, there is another plaintiff name involved, "A. BRUGUIER," who wants another book to replace the one removed.  The lawsuit also focuses on what it calls "unfair and deceptive business acts and practices...as part of a pattern and generalized course of conduct."
  For most people I talk with on Amazon forums, this description just gives the suit less credibility, as Amazon's strong point has been the overall quality of its customer service in the last couple of years.  

Len Edgerly of The Kindle Chronicles announced the other day that Friday night's podcast will include separate, unrelated interviews with Ian Freed of Amazon and with Justin Gawronski.

  The interview with the student came about because of the interesting, almost entertaining way in which he found out ("The rest of the story") that he still did have the notes after all, on his Kindle, after feeling his work had been stolen.  That can be read, with hyperlinks added by Edgerly.  It should be good to hear from Justin himself in the interview.  Len said, at the unsympathetic Amazon forum thread discussing this, that in his interview

' Justin comes across as a pretty good kid, trying to do the right thing in a situation that is getting pretty intense.  I agree this lawsuit doesn't look very good on paper, but hearing his side of the story in his own words puts the matter in a different light, IMO. '

  The notes were, by normal programming, put into a separate pure-text file ("My Clippings" file) which Kindle users can then copy or move to their computers for editing and printing.  Justin confirmed the notes are still in that file.
  About a day later, Justin received a used e-copy of the book that had been available at feedbooks.com some time ago.  It wasn't provided by Amazon though.

 The Lawsuit acknowledges that the notes were not lost (despite many current newspaper reports).  It states, instead, that Justin considers the notes "rendered...useless" because he no longer has the book for reference and that some notes, which give location numbers in the Kindle book, referred to items such as "this paragraph" in the book.


MY TAKE ON THE LEGAL TEAM'S POINTS
This includes the detail from TradingMarkets's story.

1. License for Life: Jay Edelson, of the firm of KamberEdelson uses the following rationale: his main point seems to be that “People are given license for life” (to an e-book), but I think the problem there is that Amazon found out from the copyright owner that Amazon didn’t have the "rights" to License the e-book at all as the book is still under copyright in the U.S., and Mobile Reference, who uploaded the book ‘1984? (as well as ‘Animal Farm’) didn’t have the right to offer it for sale.

  If Amazon didn’t have the right to license that book to anyone, can they license that book "for life" as Edelson puts it?

  I still feel that Amazon handled it poorly, even if giving refunds as they did, and really should not have removed the book(s) from customers' Kindles, but they have given two apologies, with the assurance (reported in The New York Times) that they’ve changed their systems so that it will not happen again despite illegal book uploads having been sold.

2. "Hacking" into peoples Kindles - TradingMarkets reporting Edelson's points).
  TradingMarkets reports, "The class action seeks injunctive relief barring Amazon.com from improperly accessing peoples Kindles in the future."

What is 'hacking' or 'improper' accessing in a network environment with ongoing interaction and file handling and backups?
  Amazon's normal network processes include ‘removal’ of a current daily blog to replace it with the most current daily blog subscribed to, and to ‘move’ customer-deleted books to the Kindle “Archives” area so that these deleted books can be re-downloadable via a click from the Amazon servers.  Also, older subscription issues are moved to a Periodicals folder, and all kinds of file handling (including back-ups of notes and notations on books with customer approval) are everyday file-handling.  In other words, deletions are part of the everyday processes.

 Ironically, a long-standing demand by some customers has been that they be allowed to have 'permanently removed,' from the Server logs forever, any books they thoroughly dislike and have deleted from their Kindles, so that they never have to see the title in their Kindle's Archives listing anymore, but Amazon has been reluctant to do this when the customer had bought it and when there is no legal issue involved that presses for permanent removal.  What if customers were to decide later we wanted a book again after all, for a second look, and called to say we had purchased it and should be able to download it?

3. Personal property / Network client device
  Another key point will be whether or not the Kindle doubles as personal property AND as a network client device, the latter covered by Title 17 of United States Code:
(c) Information Residing on Systems or Networks at Direction of Users which is discussed in an earlier report.

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To download a copy of the federal lawsuit, click here.
Photo Credit: KamberEdelson

Jeff Bezos - An Apology from Amazon

Jeff Bezos posted to the Kindle Community Discussions forum a simple but eloquently spare apology with no excuses for the remote deletions that understandably caused Amazon a tremendous loss of trust in one week for the clueless handling of a digital rights management situation which involved having inadvertently sold illegally-published books (uploaded by the trusted Mobile Reference folks who have done such good work on public domain works) and deciding to give refunds while erasing the files from servers and from network client Kindles without warning to customers who had paid for the books.

The wording is so effective, to my mind, that this will go a long way toward restoring a good bit of the trust they've had from long-time customers.

For my money, it was a classy statement, not put out to the world through a press release but directly to the Kindle community itself. Excellent move.

To check whether it was officially from Amazon, I saw that management had caused the two sticky topics at the top of that forum to become unsticky at the top - one was a Customer Service Announcement thread and the other was a Kindle FAQ given sticky status long ago for customers to help other customers.  Only management has the rights to change those placements and I think it was possibly inadvertent while placing his announcement post there:

" Initial post: Jul 23, 2009 12:16 PM PDT
Jeffrey P. Bezos says:
This is an apology for the way we previously handled illegally sold copies of 1984 and other novels on Kindle. Our "solution" to the problem was stupid, thoughtless, and painfully out of line with our principles. It is wholly self-inflicted, and we deserve the criticism we've received. We will use the scar tissue from this painful mistake to help make better decisions going forward, ones that match our mission.

With deep apology to our customers,

Jeff Bezos
Founder & CEO
Amazon.com "

A different 'rights' theory on Amazon '1984' action

This is an update to the Orwellian tale - Part 1 that has non-customers more angry than most Amazon customers posting on the forums (probably because Kindle customer service has been so responsive over the last year), though we are definitely watchful -- but Amazon took less than 8 hours to respond that they're changing their systems so that this doesn't happen again.

Note the still hilarious ongoing Amazon Kindle forum thread in which customers create new scenarios of Amazon dropping by, unannounced, to make various changes in their homes.  Yes, this was serious stuff but Amazon seems to know it stepped into a dark, deep spot it'll want to avoid in the future.

  When publishers have decided to withdraw a book from Amazon, actions haven't been done retroactively insofar as customer copies are concerned -- but if you finished reading and then deleted a book which is later withdrawn by the publisher, and you then want to re-download that book to take another look at it, the publisher's new wish takes precedence at that point and it's not re-downloadable.

  TIP:  Keep a back-up copy on your computer.

As an addendum to the earlier "Furor" story, I came across an unusual CNet article by Peter Glaskowsky which included, in its Comments area, a unique theory about this mess, by "Jaleth."  He wondered if Title 17 of United States Code:
(c) Information Residing on Systems or Networks at Direction of Users could apply to Amazon affecting its predicament with the illegal edition of the book.

It's far-fetched except that a case could be made that Kindles are a part of a network within which Amazon regularly makes contact to add files, move them into folders, back up, record last-page read for synchronization with iphone apps, and replace once-a-day blogs with newer editions.

 And, while the Terms of Service say that Amazon grants the customer "the right to keep a 'permanent copy of the applicable digital content'," this right was not exactly assignable with a book edition that Amazon and Mobile Reference weren't entitled to sell at all.

It doesn't change the fact that Amazon should never have just deleted the book and they're not likely going to be doing that again, as they said.

The network-reach theory explanations by Jaleth (above) are an interesting read as are the arguments against his.  These are found in the bottom third of the final comments page.

I wrote a post in response about the way Kindle interacts with the Amazon servers, and I'll add it here (edited) in case some readers haven't read about that.

It also includes customer-approvable backups of highlighting and annotation in connection with the books on the Kindle - to two ends:

1) the customer has a web area on Amazon which holds all the highlighting and notes for viewing at any time by the customer, sorted in various ways -- and recently Amazon created the option to see all your notes for a book on one unbroken web page. This has been very well-received.

2) Once a customer finishes a book, they can delete it from their Kindles. At that point, it goes automatically into "Archives" -- meaning it is still held at your personal Kindle-management area at Amazon and can be re-downloaded if you want to look at the book again (no add'l fee of course) -- and this includes any highlighting and notes you made to the book, if you approved the backing up of annotations.
  For each user the notes-area is reviewable at kindle.amazon.com (a private page).  Amazon's servers need access to move subscriptions and periodicals into a periodicals folder, after a certain length of time, and non-Amazon papers into the Personal Docs folder.  They also need to be able to overwrite single daily issues of blogs as those are not accumulated for the customer, though each daily download will tend to include the last 25 blog entries, useful for searches and more leisurely reading.

That's all in connection with how this works as a network.  It's my own firm belief that Amazon shouldn't have deleted the illegal edition of the book once it was purchased.  At the least, they should have let the customer know the reasons the book should be deleted but they should have let the customer do it.

Apparently, they will do something like that in the future since a spokesman was quoted as saying that they are changing the systems so that this doesn't happen again in these circumstances (I suppose he means when they delete a book from their servers for copyright reasons).

For those concerned about the 17 year old student, Justin Gawronski, whose plight was described in Brad Stone's NY Times piece, a couple of us were able to contact him and let him know that Amazon replicates the highlights and notes of any book into a file called "My Clippings" and that this is kept separate, in straight-text format on the Kindle, and that his notes should still be there.  That is done so that the customer can edit and print the notes.

Justin confirmed they were still on his Kindle, in that file.

That doesn't mean Amazon was 'right' to delete the book -- only that they have a sometimes flexible and, in many ways, well-thought-out system for the study-use of books.  Since people voiced concern over how this affected a student's work on his notes, of course - I wanted to let any readers of this comment area know.

Furor over Amazon's Deletion of Orwell's'1984' from Kindles - Update #2

Amazon, advised that the sale of illegal copies of the still U.S. copyrighted '1984' and 'Animal Farm' were taking place on their site, removed those editions from their servers and from users' Amazon-area "book shelves" which, during synchronized wireless sessions, caused the books to be deleted, remotely, from customers' Kindles, and Amazon refunded the 99c cost of the book to affected customers.

 However, there was no warning to customers, and the company's emailed explanation said only that there was a problem with the books.   This was experienced, understandably, as invasive after the purchases had been long completed.  Others point out that while physical stolen goods are taken away without payment made to buyers, Amazon is not a police dept. enforcing retrieval under a court of law.

Mobile Reference, it turns out, didn't have rights to upload and sell these copies, but since they specialize in specially formatted versions of public domain books (usually with a high level of care and on a volunteer basis) and the books are not in copyright in Australia currently, the inclusion of those books was surely inadvertent, as it's probably not widely known that the books are still under copyright in the U.S. until 2044, according to several articles online.

The most balanced and detailed story last night on the fiasco was by Nate Mook and Tim Conneally of betanews.  Give that a read if wondering what on earth happened.

The NY Times's Brad Stone posted an update quoting statements by Amazon:

' An Amazon spokesman, Drew Herdener, said in an e-mail message that the books were added to the Kindle store by a company that did not have rights to them, using a self-service function. “When we were notified of this by the rights holder, we removed the illegal copies from our systems and from customers’ devices, and refunded customers,” he said.

Amazon effectively acknowledged that the deletions were a bad idea. “We are changing our systems so that in the future we will not remove books from customers’ devices in these circumstances,” Mr. Herdener said. '

It has to be asked, under what circumstances might it still be done?

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UPDATE - 7/18/09 Originally posted 7/18/09, 4:45 AM
Stone also quotes Justin Gawronski, a 17-year-old who "was reading '1984' on his Kindle for a summer assignment and lost all his notes and annotations when the file vanished. 'They didn’t just take a book back, they stole my work,' he said."

Those notes should still be in his "My Clippings" file, which holds separate copies of highlighting and notes you make for a book.  I wonder if anyone's let Justin know he should look there.

UPDATE #2 - 7/18/09 Original posting 7/18/09, 4:45 AM
Justin Gawronski has been found via Ken Kennedy's Kenzoid's Autonomous Zone article in which he described Justin's plight as told by Brad Stone's NY Times piece and made a guide for backing up your Kindle's "My Clipping" file so that you can retain, edit, print your My Clippings file.  Also remember to check out TheProfessor's Word macro that will sort your My Clippings file by book.

Justin found Ken's story via a friend and now they're connecting to make sure his no-longer-lost notes are useable once a reasonably-priced copy of '1984' is found.
The Net is amazing.  I never reached Brad Stone though.

Justin verified he found his notes in the My Clippings file. I don't know if Justin can stand reading a book online, but at least it's free to do that, as I just found out, at the George Orwell site.  I sent Justin a quick note.

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An Amazon customer discussion forum thread has some good pros and cons by members with some information on past deletions for copyright (Ayn Rand, Stephanie Meyer's Twilight series) and the current situation with these two books in other parts of the world.

I've barely touched on the details, so do read the articles above if curious about the uproar.

It's not all nefarious deeds and high drama though.  There's a lighthearted send-up of the situation by Amazon customers in one entertaining forum thread.  Don't miss it.

UPDATE 7/18/09 - James Adcock makes one of his usual good points in the Amazon thread normally focused on the many ways to get books for your Kindle.  He uses the analogy of someone selling you a bike or camera but not realizing it was stolen.  I replied to his with another thought on that.

My own personal take on this, posted to the Amazon forums on 7/18/09 also, in connection with the above.

And here's another very good summary of the situation, by Ars Technica's Ken Fisher on "Why Amazon went Big Brother on some Kindle e-books."