Wednesday, September 30, 2009

Amazon settles lawsuit over remote-deletion of '1984' - UPDATE4

Amazon settles lawsuit over deleted Kindle copy of '1984.'

UPDATE to Student sues Amazon despite finding 1984 notes (and despite a Good Samaritan type having given him -- after hearing of his plight -- a copy of the same 'location-numbered' book previously downloaded DRM-free from  The lawsuit was based on the principle of the remote deletion and to get legal assurances that this kind of remote deletion wouldn't occur again under those circumstances, as had been said by Amazon spokesperson Drew Herdener in an e-mail message to Brad Stone of The New York Times, but clarifying what any other 'circumstances' might be.  That more vague actual statement was:
'Amazon effectively acknowledged that the deletions were a bad idea. “We are changing our systems so that in the future we will not remove books from customers’ devices in these circumstances,” Mr. Herdener said. '
  The linked article from 7/31/09 was a summary of what went before, expanding on what was described in earlier articles (1)  and  (2) on the Amazon '1984' debacle.

Tech Flash's Eric Engleman
' Now Amazon has settled the lawsuit with Gawronski and a co-plaintiff. As part of the deal, which awaits court approval, Amazon said it "will not remotely delete or modify" works on Kindles, with some exceptions.

Here's an excerpt from the settlement document (pdf, 9 pages) which was filed Sept. 25 in U.S. District Court in Seattle and just unearthed by TechFlash:
Amazon will not remotely delete or modify such Works from Devices purchased and being used in the United States unless (a) the user consents to such deletion or modification; (b) the user requests a refund for the Work or otherwise fails to pay for the Work (e.g., if a credit or debit card issuer declines to remit payment); (c) a judicial or regulatory order requires such deletion or modification; or (d) deletion or modification is reasonably necessary to protect the consumer or the operation of a Device or network through which the Device communicates (e.g., to remove harmful code embedded within a copy of a Work downloaded to a Device).
As part of the settlement, Amazon will pay a fee of $150,000 to the plaintiff's lawyers, and the plaintiff's lead law firm KamberEdelson LLC will donate its portion of that fee to charity.

Amazon spokesman Drew Herdener had no comment.  Attorney Michael Aschenbrener of KamberEdelson, who represents Gawronski and the other plaintiff, Antoine Bruguier, called it a "great settlement."

"It provides protection for Kindle users and provides confidence to them that the books, newspapers and magazines they purchase will not be subject to remote deletion by Amazon," Aschenbrener said. "It sends a message to digital media purveyors of all kinds that sellers really need to respect users' rights to that content."
Techflash says that since the lawsuit had been seeking class action status, the settlement ends the possibility of a "painful legal situation."

Note that the settlement "awaits court approval."

UPDATE 2, with further addition to this section 10/2/09
  In connection with some who have insisted that the ability to do a remote-deletion be completely removed, the settlement speaks to processes I'd mentioned re dynamic network maintenance involved in subscriptions and other ongoing content-deletion based on time factors; these are taken care of in the document:
' This paragraph does not apply to (a) applications (whether developed or offered by Amazon or by third parties), software or other code; (b) transient content such as blogs; or (c) content that the publisher intends to be updated and replaced with newer content as newer content becomes available.
  With respect to newspaper and magazine subscriptions, nothing in this paragraph prohibits the current operational practice pursuant to which older issues are automatically deleted from the Device to make room for newer issues, absent affirmative action by the Device user to save older issues. '
  After reading various articles on this, which didn't seem to take into account details of the actual document, I decided to add here the items below:
'4. Amazon will pay Plaintiffs’ counsel a fee of $150,000, subject to the understanding that KamberEdelson LLC will donate its portion of that fee to a charitable organization that promotes literacy, children’s issues, secondary or post-secondary education, health, or job placement.

 5. Other than as set forth herein, Amazon shall not be liable for any fees or expenses of Plaintiffs or Plaintiffs’ counsel in connection with the Action.

 6. Plaintiffs agree that, to the fullest extent permitted by law, neither this Stipulation nor the fact of it, nor any act performed, nor any statements made publicly or otherwise in responding to concerns raised by Plaintiffs or other users, nor any document negotiated or executed pursuant to or in furtherance of it, is or may be deemed to be or may be used as an admission or concession of, or evidence of any liability or violation of any law by Amazon in any court, administrative agency or other tribunal. '
UPDATE 4 - 10/2/09. Also of interest is the clause:
' WHEREAS, based on current circumstances, Plaintiffs believe they would not likely be able to certify classes under Rule 23(b)(3) because of Amazon’s offer to fully reimburse affected consumers for all Subject Works previously removed by Amazon from Devices and to restore notes and annotations... '
 Also, some eagle eyes have noted what another clause may imply, whether for the near or distant future:
'...does not apply to (a) applications (whether developed or offered by Amazon or by third parties), software or other code...'
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  1. the plaintiff's lead law firm KamberEdelson LLC will donate its portion of that fee to charity.

    What about the plaintiff's portion? I thought the plaintiff was not interested in money?

  2. Hi, PaulGuy -

    From what I understand, the lead law firm you mentioned would be splitting the fee with the other law firm involved, who signed the document also. That's the Law Offices of Clifford Cantor.

    The statement says Amazon isn't liable for any fees for the plaintiffs themselves except as set forth there (their voluntary action on September 3 to offer $30 or the book + notes) -- and that was the $30 they offered on September 3 to ALL customers whose Orwell books had been deleted unless the customer preferred to have the previously-purchased book back complete with annotations they'd made. I think I read that Justin had opted for the $30, as his class was done.

    Justin was on record as saying initially that he was not interested in leading the lawsuit (he had mentioned the U.S. being sue-happy) but he was convinced by the legal team that this would be precedent-setting in a good way and he then agreed to be the main plaintiff.

    If you find out it's otherwise, do let us know. Thanks!

    Also of interest to me were a couple of things I added today in the bottom updates.

    - Andrys


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