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
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Article 5
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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)