Amazon: a failure to remember the physical

By: Scott Bradner

This column is not really about Amazon violating their own terms of service and deleting e-books that Amazon Kindle users had purchased from Amazon. Amazon did just that and most commentators are painting it as some sort of isolated brain fart, but I think it's not actually an Amazon-specific problem.

Just for background. Amazon sells an electronic book reader known as the Kindle. Kindle users can buy electronic books from Amazon to read using the Kindle. The Amazon Terms of Use (http://www.amazon.com/gp/help/customer/display.html?nodeId=200144530) say that Amazon grants the user "the non-exclusive right to keep a permanent copy" of the e-book. The Terms do not let you resell the e-books and limit their use to the individual that bought them. The Terms say that Amazon can revoke access to the e-book without notice if you violate Amazon's terms but nowhere do the Terms of Use say that Amazon can delete e-books after you buy one. In spite of this, Amazon did delete e-books for what is arguably a good reason - Amazon did not have the right to sell the e-book in the first place.

The underlying issue here is that Amazon, among many others, see the rules for digital as different than the rules for other things. It would never have crossed Amazon's collective mind to grab a physical book from you if they had shipped you one that it turned out they did not have the right to sell. But, maybe because they had could, Amazon just did what they have the ability to do without thinking to see if the ability to do something automatically meant that it was the right thing to do.

Amazon is not alone in confusing the ability to do something with the idea that it is the right thing to do. It would be inconceivable that the US Post Office would be required to make and save a record of who sent and received every letter it handled yet, just because it can be done, a number of law enforcement officials have called for laws that require ISPs to do just that with email. (http://news.cnet.com/8301-13578_3-9926803-38.html)

It is rare indeed that buying something digital operates under the same rules as buying something physical. Amazon's own Terms of Use is a perfect example. If you buy an e-book from Amazon it is not really yours. That is, you are not allowed to sell it, loan it so a friend, donate it to a library or about anything else that one can do with a physical book. The laws permitting this type of very limited ownership may be changing. (See "Maybe you did buy that software after all" http://www.networkworld.com/columnists/2008/052708-bradner.html) Maybe there is a future where you can buy something digital and treat it as if you actually owned it.

That future would have to have a way to deal with the fact that making copies of digital things is a lot easier and harder to track than making copies of physical things. That does not mean that it is impossible - see "Detecting Double-Spending" (http://finney.org/~hal/chcash2.html) for one approach to this type of problem.

It would be nice if the ability to do something, such as limiting utility or invading privacy, in the digital world was not taken as a mandate to do that thing. But I'm not holding my breath.

disclaimer: The confusion between having the ability do something and having the authority to do it is a common theme in ethics classes in places like Harvard but I have not seen a university opinion on this confusion when it comes to the digital world so the above is my own ramble.