Amazon could defend itself from a class-action lawsuit over its decision to delete digital editions of two George Orwell books from Kindle reading devices by arguing that trespass law does not apply to electronic appliances which are connected to their vendors.

Two Kindle users, including a 17-year-old high-school student, filed the suit last week, alleging that the remote deletion of “1984” and “Animal Farm” from Kindles amounts to digital trespassing under both the Computer Fraud and Abuse Act (CFAA) and tort law. Plaintiff Justin Gawronski says he lost the “copious” digital notes he had made on “1984” as part of his studies.

“Amazon has no more right to delete e-books from consumers['] Kindles and iPhones than it does to retrieve from its customers’ homes paper books it sells and ships to consumers,” the complaint argues.

Company chairman Jeffrey Bezos has apologized for the Big Brother-esque deletions, saying Amazon's solution to a copyright problem was “stupid, thoughtless and painfully out of line with our principles.” Some pundits have predicted a speedy settlement of the suit –- especially as the Kindle terms of service refer to users having a “permanent copy” of the digital content they purchase.

Gawronski and co-plaintiff Antoine Bruguier are represented by KamberEdelson, a Chicago law firm which has also brought digital trespassing suits involving a Windows XP anti-piracy program and the Spore Creature Creator video game.

Nevertheless, the law may be out of sync with the technology of “tethered” appliances such as the Kindle, leaving Amazon with a potential legal loophole.

The class action includes a claim for trespass to chattels, which the Restatement of Torts defines as “intentionally … dispossessing another of the chattel, or using or intermeddling with a chattel in the possession of another.” Computer users have successfully asserted the tort against Internet advertisers and e-mail spammers.

A defendant's use of a plaintiff's computer system can “support an action for trespass when it actually did, or threatened to, interfere with the intended functioning of the system,” the California Supreme Court noted in Intel Corp. v. Hamidi, 30 Cal. 4th 1342 (2003).

There is no doubt that Amazon interfered with the functioning of Kindles. It deleted the Orwell books after learning that they were sold in the Kindle store by a bookseller who did not have legal rights to them.

But the author of "The Future of the Internet -– And How to Stop It" has suggested that Kindle users do not "possess" their appliances as PC users do theirs. The shift to tethered appliances, Jonathan L. Zittrain writes,

is fundamentally changing the way in which we experience our technologies. Appliances become contingent: rented instead of owned, even if one pays up front for them, since they are subject to instantaneous revision.

Zittrain cites two cases in which courts have recognized the “contingency” of tethered appliances. Ruling for TiVo in a patent case, a Texas judge in 2006 ordered EchoStar to remove the digital video recorder capability of products it had already sold, while a California judge in 2001 ordered the remote removal of MP3 playback software from the AOL 6.0 program.

Amazon acted without a court order, but it could still argue that much as a landlord retains a right of access to rented property, it has a right of access to the content of a Kindle under certain circumstances –- for example, when the content is defamatory or in violation of copyright.

As far as the CFAA claim of Gawronski and Bruguier, it requires them to show that Amazon intentionally accessed a “protected computer without authorization, or exceed[ed] authorized access.” The Kindle terms of service authorize Amazon to “modify, suspend, or discontinue the Service at any time” but do not define “modify.”

The KamberEdelson firm has been a pioneer in the area of digital trespassing. In one case, it won a settlement for a woman who received unwanted text messages on her cellphone from Facebook users.

By Matthew Heller
8/6/09