A Kindler and Gentler Censorship?
Sunday, 19 July 2009

In the print world there was no mistaking censorship.   If a book in a library collection was challenged or if a government suppressed the distribution of a political tract,  everyone knew what was involved.  But in the digital world, where technological devices carry out our acts of censorship, it is so much more subtle. It's almost as if there is no direct human intervention when filtering software blocks a website, when an ISP throttles content, or when a corporation reaches into a consumer's private library to remove allegedly unauthorized materials. 

But when materials are censored electronically,  it is censorship just the same as it was in the print world. And when materials are censored for economic reasons,  there is censorship just the same as if it had been motivated by political or religious zeal.  And more particularly, when Amazon.com caused the deletion of files from the e-books of Kindle users who thought they had purchased copies of certain works,  that was a form of censorship. It was censorship just as if agents had entered the consumers' homes, taken the books from the shelf, and thrown them into an incinerator.


It was also an undue invasion of privacy and an example of excessive copyright enforcement enabled by technological measures. The fact that the works in question just happened to be George Orwell's Animal Farm and 1984 adds a certain amount of colour and irony to the incident as does the public domain status of these works in most of the world including Canada. 


The story was reported by the NY Times last week. According to NYT blogger David Pogue, “hundreds of Amazon Kindle owners awoke to discover that books by a certain famous author had mysteriously disappeared from their e-book readers. These were books that they had bought and paid for -thought they owned.”

Library Journal blogger Roy Tennant raises the issue of censorship quite directly:

The Kindle ability that many people like and enjoy -- the ability to easily download new content just about anywhere and anytime -- is also the very mechanism that can be used to censor what they read. Yes, I realize that this is an issue regarding publication rights, but it doesn't take an imagination of Orwellian proportions to do the math. What would stop Amazon, or any entity with enough sway over Amazon (and here the list is longer than you may think) from censoring what you're reading? At this point, nothing. Welcome to 1984 -- only 25 years later than predicted.

From the point of view of someone wishing to select what you read, this must seem like the Golden Age of Censorship. Just control the delivery platform -- or be able to persuade those who do -- and you're good to go.

Tennant's  conclusion that the incident “might serve to wake us up to the potential dangers of this model for e-book distribution” is very well taken as is the EFF's Hugh D'Andrade's observation that “the Ministry of Truth would have truly appreciated DRM and tethered devices.”

Howard Knopf nicely puts all of this into the context of current copyright policy discussions  when he says “This is also an example of what TPMs, DRM, and contractual override, all as found in and/or enabled by Bill C-61, can do for you.” (and see other postings from SlateMashable and the Register).

While it's quite ironic that the books that prompted this issue were Orwell's classics 1984 and Animal Farm, (now in the public domain in most of the world including Canada and readily available online) it could have happened for any work,  and it could  happen here.  Coming on the eve of a new set of copyright consultations (see here and here) and just days after the release of an important decision upholding online privacy rights,  news of this incident is actually quite timely and is a reminder of the strong interconnection between copyright, privacy and censorship issues.


Kindle's License Agreement and Terms of Use does not give the company the right to use self-help to delete files from a  unit once purchases have been made.  While it contains many of the typical restrictions found in mass market licenses, it explicitly states that:

Upon your payment of the applicable fees set by Amazon, Amazon grants you the non-exclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times, solely on the Device or as authorized by Amazon as part of the Service and solely for your personal, non-commercial use. Digital Content will be deemed licensed to you by Amazon under this Agreement unless otherwise expressly provided by Amazon. (paragraph 3)

While there is a rather foreboding clause that warns end-users that their every move with the device is monitored, it does not itself authorize self-help to delete purchased content:


The Device Software will provide Amazon with data about your Device and its interaction with the Service (such as available memory, up-time, log files and signal strength) and information related to the content on your Device and your use of it (such as automatic bookmarking of the last page read and content deletions from the Device). Annotations, bookmarks, notes, highlights, or similar markings you make in your Device are backed up through the Service. (paragraph 5)


While the idea of the ebook continues to hold out much promise for the effective distribution of content, especially for persons with perceptual difficulties, a review of these terms of service show that there are many problems that still need to be worked out. In the long run, these privacy-invasive, proprietary models will fail, in large part because the DRMs and TPMs will disable consumers from making the best possible uses of these promising new  techologies.


For now, the whole incident serves as yet another warning that consumers need better protection from DRMs and TPMs; much more so than the other way around. One can only imagine what George Orwell would be telling the Canadian government were he able to be present at the upcoming copyright consultations. But we should try.