New intellectual arms trade-CMLP

September 21, 2009

The New Intellectual Arms Trade: Amazon and B&N as Literary God-Emperors

Andrew Moshirnia

Citizen Media Law Project: August 13, 2009

http://www.citmedialaw.org/blog/2009/new-intellectual-arms-trade-amazon-and-bn-literary-god-emperors

When we were kids, we couldn’t wait for the future to hurry up and get here. Flying cars, pills for food, conveyor belts, the works. What we didn’t understand was that the future would arrive in pieces: the everywhere computer (iPhone), the million channel TV (YouTube), the all-knowing answer machine (Wikipedia), and the hive mind (Twitter). These wonders didn’t arrive in a big box marked “Future,” but appeared one at a time.  Sometimes the future is so discreet, you don’t realize you are living in it.

Well then, let me play spoiler and tell you that the future of reading has already arrived. It’s been here for two years, you just didn’t know it. And this future isn’t exactly a happy one. In this future, your pages of Silent Spring are framed by advertisements for Bug Spray.  In this future, the cover of Infinite Jest asks you to make this the true Year of the Whopper. In this future, Peter Pan can disappear from your shelf, digitally banished to Never Never Land. And in this future, you can sit down with a copy of 1984 and be fairly sure Big Brother is watching you.

Oh, you didn’t know we reached a literary end-of-days where a corporate entity can place ads in classics, kill the public domain, and forcibly adopt orphan works? Well let me fill you in.

Two years ago, Amazon quietly applied for a patent for “on-demand generating e-book content with advertising.” Which we all know is corporate crypto-speak for “smuggling ads into your books.”

You see, Amazon wants you to be able to read rare or out-of-print books. And to let you do just that, Amazon needs to make money. According to Amazon’s patent description, the problem is these books “typically do not include advertisements and, if they do, the advertisements are out of date and inapplicable.” How very true. I can’t tell you how many times I’ve been reading The Jungle and been distracted by ads for mustache wax and vibrators.  But by adding up to date keywords ads (for McDonald’s new McSoylent Green, now with more people), the company can generate a new revenue stream.

Incidentally, these rare and out-of-print books will likely be “orphaned” — that is, their copyright holders are unidentified — or in the public domain. And so, gosh darn it, it looks like Amazon won’t be able to share this ad revenue with occulted authors. But I’m sure Amazon, just like other large book sellers (or search engines), would never dream of trying to absorb/appropriate books in the public domain.

Now why would all this bother me? A few weeks before it filed its on-demand book ads patent, Amazon launched the Kindle. The handy device that lets Amazon remote-delete books that Amazon claims violate copyright or the Kindle service agreement. Indeed, Amazon did that just a little while ago.  I flipped out and wrote about it. And that was before I realized that Amazon was possibly cooking up a way to profit from public domain books.

Now could it be that maybe, just maybe, Amazon will control the books that it allows on its Kindle and protect its new public domain advertising money train? Amazon reached out and destroyed a bootlegged version of 1984, because the uploaders didn’t own the rights to distribute the book. How much of a stretch would it be for Amazon to start digitally assassinating “unauthorized” copies of public domain works (that is, one’s without embedded, money generating advertisements), even though there will be no aggrieved copyright holders?

So to sum up: Amazon will control the works that can be placed on the Kindle. And I’m fairly confident that they will only open up the device to distributors that agree to host revenue generating ads.

It might not stop there. What about DRMing works in the public domain? Sound crazy? Barnes and Noble is already doing it. When you download a public domain work for the B&N e-reader “for copyright protection purposes, these files are encrypted and cannot be converted or printed.” Techdirt summed this up: B&N will “encrypt [public domain works] with DRM to protect [a] copyright that doesn’t exist.”

This is how the literary world ends, not with a bang but a whimper. We are living in the future, waiting to discover that behemoths are eating up books in the public domain, DRMing everything in sight, and exercising power that would make Tamerlane blush. I feel like I was just hit by a flying car. Thank god I have my soma.

(Andrew Moshirnia is a rising second-year law student at Harvard Law School and a CMLP legal intern. He would like to take this time to remind you that vibrators were socially acceptable until the 1920s and were the fifth domestic appliance to be electrified.)

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