Conversion of Digital Property: Protecting Consumers in the Age of Technology

Loyola Consumer Law Review, Dec 1010

By Caitlin J. Akins, Published on 01/01/10

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Conversion of Digital Property: Protecting Consumers in the Age of Technology

Conversion of Digital Property: Protecting Consumers in the Age of Technolog y Caitlin J. Akins 0 0 Caitlin J. Akins Conversion of Digital Property: Protecting Consumers in the Age of Technology , 23 Loy. Consumer L. Rev. 215 (2010). Available at: Part of the Consumer Protection Law Commons Recommended Citation - Article 5 Follow this and additional works at: http://lawecommons.luc.edu/lclr OF DIGITAL PROPERTY: PROTECTING CONSUMERS IN THE AGE OF TECHNOLOGY CaitlinJ. Akins' Introduction A nheigohtiatsecdhoaol setsttluemdeenntt wreitchenAtlymazsoune.cdomanadftersuthcceesosnf ulilnlye retailer deleted his homework.2 In July 2009, Amazon unilaterally removed ebook publications of George Orwell's Animal Farm and 1984 from all of their customers' Kindles 4 without notice and without consent.' Users could no longer ST. J. DIGITS BLOG (Oct. 1, 2009), http://blogs.wsj.com/digits/2009/10/01/amazon-pays-for-eating-studentshomework/?mod=rssWSJBlog. Random House, Inc. v. Rosetta Books LLC, 150 F. Supp. 2d 613, 614-15 (S.D.N.Y. 2001) (ebooks are digital books that users can read using an electronic device, and are "created by converting digitized text into a format readable by computer software"). ' The Kindle is an eReader; an electronic device on which customers may read ebooks. See Amazon.com: Kindle Wireless Reading Device, http://www.amazon.com/dp/BO02Y27P3M/ref=kindlesu-2 [hereinafter Amazon Kindle Homepage]. The Kindle is manufactured and distributed by Amazon.com. Id. Since Amazon first introduced the Kindle eReader, multiple new versions of the device have been released, including the "Kindle 2" and "Kindle DX," which this Note will refer to generically as the "Kindle." See id. Although other companies have released eReaders for digital books, and some like the Sony Reader have been quite successful, Amazon's Kindle has emerged in the field as the standout market leader. See Nicholson Baker, A New Page; Can the Kindle Really Improve on the Book?, THE NEW YORKER, Aug. 3, 2009, at 24; Alexandra Zendrian, A Kindle, Gentler Nation, FORBES.COM (Nov. 23, 2009), http://www.forbes.com/2009/11/22/kindleereader-amazon-intelligent-investing-microsoft.html. ' Brad Stone, Amazon Erases Two Classics From Kindle. (One Is '1984.'), N.Y. TIMES, July 18, 2009, at B 1. Apparently this was not the first time that access texts they had purchased and any personal notes customers had added to their ebooks were rendered useless.6 The personal notes that the plaintiff took on his version of 1984 for a school project were effectually deleted along with his ebook file.' The ironic Orwellian overtones of Amazon's behavior were highly publicized, and uniformly decried in the media and blogosphere. One victim noted, "it's like Barnes & Noble sneaking into our homes in the middle of the night, taking some books that we've been reading off our nightstands, and leaving us a check on the coffee table."' Kindle owners everywhere with these titles in their digital libraries experienced the same thing, illustrating how modern digital product 0 providers retain substantial power over their products even after a sale to a customer is completed." While surprise deletions had occurred before, this was the first time a user sued.12 The plaintiff reached a settlement granting monetary damages and enjoining future deletions from Kindles." Despite the lawsuit's success, Amazon's technological capability to interfere with digital customer products after they are purchased has not changed. 14 At the heart of it, Amazon electronically 137 (2007) (discussing approach for defining virtual property); and Molly Stephens, Note, Sales of In-Game Assets: An Illustration of the Continuing Failure of Intellectual Property Law to Protect Digital-Content Creators, 80 TEX. L. REV. 1513 (2002) (addressing the failures of the current system to protect intellectual property). Instead, this Note will focus on products like ebooks and music downloads that are digital analogues to ubiquitous products in the non-digital world. See Baker, supra note 4. 12 Complaint, supra note 6; Stone, supra note 5. 13 Fowler, supra note 2. See also Stipulation of Settlement at 5, Gawronski v. Amazon.com, Inc., No. 09-CV-01084-JCC (W.D. Wash. Sept. 25, 2009), available at http://assets.bizjournals.com/cmsmedia/pdf/KindleCasel.pdf?site=techflash.c om [hereinafter Settlement]. While not explicitly laid out, the language of the agreement indicates that Amazon is enjoined from deleting items from any Kindles, not just those of the Plaintiffs, since the initial lawsuit was brought on behalf of three certified classes, one of which was all Kindle users. Id. 14 See Nilay Patel, Amazon Clarifies Kindle Book-Deletion Policy, Can Still Delete Books, ENGADGET (Oct. 1, 2009), http://www.engadget.com/2009/10/01/amazon-clarifies-kindle-book-deletionpolicy-can-still-delete-b/. In the wake of the deletions, for example, Amazon CEO Jeff Bezos claimed that in looking ahead, "[w]e will use (...truncated)


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Caitlin J. Akins. Conversion of Digital Property: Protecting Consumers in the Age of Technology, Loyola Consumer Law Review, 1010, Volume 23, Issue 2,