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the problem is these books “typically do not include advertisements and, if they do, the advertisements are out of date and inapplicable.”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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Another View
With all due respect I think this is a quite unbalanced assessment/commentary on the situation.
As you put it, "So to sum up: Amazon will control the works that can be placed on the Kindle." That's exactly correct. It's their product. They get to decide what goes on it, what format it's in, whether it's rights-managed or not, and so on and so forth. As a consumer you are buying into their product. You play by their rules (provided they are spelled out in the terms of use).
What does it matter if Amazon applied for a patent to put ads in books? What's that got to do with the price of tea in China? If you have an aversion to ads, don't buy a Kindle.
As for the Orphan Works issue and the placement of ads in public domain content, again- what else is new? Charging money for public domain information has been a standard business practice for who knows how long. Moreover, you speak of the republishing of an Orphaned Work as if it bestows a new copyright upon Amazon, which it does not.
The point I am trying to make is that you're getting rather upset about things are standard operating procedure in the business world. Of course, you reserve the right to critique those practices, but when push comes to shove they are usual and perfectly legal. To that end, it is incumbent upon you or someone else (and I think this is the obvious use for your energies) to start a new company whose mission is to provide the same services as Amazon and friends, but without all the things you've written that you dislike. Perhaps this sounds revolutionary, but believe me it has been done before.
Lastly, I would make most of those same arguments about B&N, although I agree it is downright stupid if not unethical to add rights management to a work without a copyright.
Although thought-provoking, I think this piece is much more fearful than it needs to be. One can take a cooler and more balanced approach while being equally critical. It's OK- in fact- good, to be up in arms about such things. But it might be wise to do so in a way that does not invite accusations of fear-mongering or conspiracy-theorizing.
Regards,
Max
A reply to some of your points
Max,
First off, thanks for your considered comment. You raise some interesting points that I feel I should address.
As to the fear-mongering nature of the piece, I think there is some comic hyperbole in my prose, and I would hope that I signaled that in several spots, not least with my discussion of intrusive ads for products made from people. This is not to say that the piece has no point, but I would like to think the message comes across as semi-comedic.
I think that the "play by their rules" argument is a bit simplistic. Many terms of a contract can be be unconscionable/against the public interest, especially when the device has a huge market share. You might look to the current movement to change Apple's monopoly on iPhone aps (their approach to google voice comes to mind). I am certainly not the first commentator to suggest that the terms of service for the kindle are grossly unfair. Commentators have called for laws against remote-deletion, for example see Slate's coverage of the incident.
As to ads in books, I would say that my point isn't that inserting ads would be illegal. However, the idea of a possibly intrusive ad in a book just seems wrong, like something out of a 70's dystopia movie. The kindle will probabily succeed because it offers many advantages to the old paper product (storage comes to mind). I am lamenting the fact that this shift will likely come with the price of adding commercials to book chapters. (I remember this being so absurd when I was a child that it was the topic of a You Can't Do That on Television skit).
As to the implication that Amazon or B&N would gobble up orphaned works, two things come to mind. If these books are indeed rare, the digital version would be the only game in town. So if I wanted to read the work I now would have to sit through ads to do so, (incidentally something that I doubt was on the author's mind when he wrote it. I shudder to think what an author like Thoreau would think of travel ads in Walden.) I am also not the only commentator to wonder if the regime towards orphaned works and works in the public domain might be changed in light of DRMing and e-book publishing. None of this may matter, it may be SOP, but I still don't think it is out of the realm of possibility that absorption could happen.
Finally, the greater Kindle business model, and the model of deliberately crippling a device / tethering in general can be scary. While I do not have the time to start an e-book company, I thank you for your suggestion. But, I'm sure Amazon and other market leaders could use their power to prevent all sorts of competition. History is replete with example of an oligopoly protecting an inferior delivery method/product. So a market-alternative theory is not always a viable approach.
However, when all is said and done, the piece is just speculation on how things might work out in the future. And I fully grant that I might be pulling a kreskin, one runs such risks when considering the future.
Thanks again for your comment and I hope you enjoyed the parts of the piece to which you did not object.
Best,
Andrew