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