Liability of apps providers
Published on 10 Aug 2009 at 4:25 pm.
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Filed under Misc.
Blog Author: Mark Owen
Content is “sold” for the Kindle eBook reader over a private Amazon network, Whispernet. This is only available in the US. Publishers upload content to the network which Amazon then makes available. Warranties are given to Amazon by the publisher as to its right to do this.
Two George Orwell novels, 1984 and Animal Farm, were made available over Whispernet and copies were “purchased” by a number of Kindle users. It subsequently emerged that the publisher who had uploaded the content did not enjoy the necessary rights to do so. It is what happened next which is interesting. Rather than simply removing the books from the Kindle store and looking to the other party for compensation in the event that the real right-holder sued Amazon, Amazon went further and deleted the copies from the users’ Kindles.
Uproar followed and then a swift mea culpa from Jeff Bezos.
Much of this was caused by the manner of the deletion, with users apparently unaware what had happened and why and concerned that there was an invasion of privacy. Some were also unclear whether in fact all they had was a licence to the content rather than a permanent right. That issue is not a new one and lies at the heart of the private use debate, ie if you’ve bought a CD why can’t you also copy it onto your iPod. However, the episode raises interesting questions about the effects of new methods of distribution on service provider liability.
Amazon apparently took the view that because it had the technical ability to remove the content then it had to do so. Because of the nature of Whispernet, books remain on it even once they have been “acquired” by end users. If so then Amazon may be in exactly the same position as a host of a network containing unlawful content, and potentially liable for it.
What is also interesting is the potential for expansion of a service provider’s liability beyond situations where it is hosting unlawful content to those where it is no longer strictly speaking hosting the material but retains some ability to disable it, through digital rights management software, even after it has been distributed. This may have implications not just for Kindle/Whispernet but also app stores.