Restraining Amazon.com's Orwellian potential: the Computer Fraud and Abuse Act as consumer rights legislation.

• Author: Sanders, Alicia C.
• Position: Rough Consensus and Running Code: Integrating Engineering Principles into the Internet Policy Debates

1. INTRODUCTION II. THE GA WRONSKI SETTLEMENT A. The Amazon Kindle B. The Gawronski Complaint and Settlement C. Historical Background: Expansion and Restriction of the CFAA III. THE ADVANTAGES OF THE CFAA OVER OTHER REMEDIES A. Analysis of Gawronski's CFAA Claim on the Merits B. Comparison of the CFAA Claim and Other Remedies 1. Breach of Contract and State Law 2. Trespass to Chattels IV. CONCLUSION I. INTRODUCTION

   Amazon.com revealed a capacity for irony when it remotely deleted certain copies of George Orwell's 1984 and Animal Farm from its Kindle e-book readers in 2009. (1) In response, two users filed a class action lawsuit against Amazon.com. (2) Among several causes of action, the plaintiffs claimed that Amazon.com had violated the Computer Fraud and Abuse Act of 1986 (CFAA) by causing harm to their Kindles without authorization. (3) The lawsuit is one example of the ways that the CFAA has grown since it was enacted. (4) The Gawronski lawsuit is a useful case study that shows why the expansion of the CFAA is a good thing for consumers, and why recent restrictions on the Act should not prevent lawsuits like the one Justin Gawronski brought against Amazon.com.

   In recent years, the CFAA has been criticized as too expansive. (5) What started as a law to prevent hackers from harming federal computer systems has grown to encompass behavior that is not typically considered hacking. For example, the CFAA is now commonly used in private civil claims of employers against employees who use work computers for unauthorized purposes. (6) The CFAA has strayed far from its original purpose, causing a rise in federal litigation that would not otherwise exist. (7) Recent cases that curtailed employers' remedies for disloyal employees, along with one that declined to extend criminal penalties to a breach of a website's terms of service, mark the beginning of a move toward reining in the scope of the CFAA. (8) In many areas, the new judicial restraint may be justified. (9) But the civil causes of action arising under the CFAA deter some behavior that should be curtailed, like Amazon.com's unauthorized deletion of e-books.

   A powerful CFAA can protect consumers from one-sided licensing deals like the purchase of e-books. One of the CFAA's unique benefits over alternative causes of action, like trespass to chattels, is that it creates uniform treatment for Internet-based contracts because the federal system has greater potential for uniformity than state law. The CFAA also has the conceptual advantage of conceiving of e-book ownership as a bargained-for set of rights in a file, not as personal property in the same way that physical books are property. (10) This concept more accurately reflects the reality of the e-book market than do alternative causes of action. Instead of categorically restricting the CFAA to cover only hacking, the CFAA should continue to apply to devices like the Kindle. Any future judicial or statutory restraints on the statute should not constrain e-book purchasers' ability to use the statute to protect themselves from the licensors of e-book files. In addition, a revision of the CFAA expressly creating a cause of action for tethered e-book readers should be added.

2. THE GAWRONSKI SETTLEMENT

   1. The Amazon Kindle

      The Amazon Kindle is a handheld wireless device that displays electronic books that have been purchased from Amazon.com's online Kindle Store. (11) Amazon's Whispemet, the network that tethers the e-reader to Amazon.com and allows downloading of e-books, is accessible from any Kindle without extra fees. (12) Amazon.com also created a free software download for PC that displays Kindle e-books for those who want to read e-books on a traditional computer screen. (13)

      The Amazon Kindle has become one of the most popular devices in consumer electronics. (14) Amazon.com announced that the Kindle was its most popular gift item during the 2009 holiday season and that sales of e-books surpassed sales of traditional paper books for the first time in the few days following December 25, 2009. (15) Kindle e-book files prevent users from sharing or transferring the files in ways that violate the Amazon Kindle User Agreement. (16) The Kindle's popularity has caused several competitors to release their own e-readers, most notably the Sony Reader and the Barnes & Noble NOOK. (17) Competing models and stores operate in essentially the same way as the Kindle.

   2. The Gawronski Complaint and Settlement

      In July 2009, Kindle owners booted up their e-readers only to see that their copies of George Orwell's 1984 and Animal Farm had been remotely deleted from their systems. (18) Certain works of Ayn Rand went missing as well. (19) Other than providing a refund for the missing books, Amazon.com refused to explain the deletions, but later admitted that it had removed the e-books because of copyright problems. (20) According to a statement later made by Amazon.com, the particular e-books had come from Canada, where copyright protection lasts for the life of the author plus fifty years. (21) Orwell's books are public domain in Canada; however, they were still under copyright in the United States, where copyright protection lasts 95 years after the publication date for works published before 1978. (22) If the copyright owner had brought suit against Amazon.com, the company could have faced anywhere between $750 and $150,000 in statutory damages for each infringing work. (23) Once Amazon.com realized its mistake, it immediately stopped selling the e-books in its Kindle Store and retrieved the copies it had already sold. (24) Amazon.com employees remotely accessed the Kindles of each person who had bought the offending e-books and deleted the files, immediately reimbursing the purchase price of the book. (25)

      In response, two plaintiffs, Justin Gawronski and Antoine Bruguier, brought a class action lawsuit against Amazon.com in the United States District Court in the Western District of Washington on July 30, 2009. (26) The plaintiffs claimed that Amazon.com harmed them by taking away their property--the e-book files--and also claimed that they had lost valuable electronic marginal notes (such as "remember this paragraph for your thesis"), which were useless without the corresponding files. (27) The complaint alleged that Amazon.com had breached its own terms of service by deleting the files. (28) The complaint also claimed trespass to chattels and a violation of the Computer Fraud and Abuse Act. (29) The plaintiffs identified three classes in the lawsuit: the Kindle Class, which includes all owners of the Kindle, Kindle 2, or Kindle DX; the Big Brother Class, which includes all individuals who had an e-book deleted by Amazon.com; and the Big Brother Work-Product Subclass, which includes anyone who had made marginal notes on an e-book that Amazon.com had deleted. (30)

      A few weeks before the settlement on September 3, 2009, Amazon.com had announced that affected users could either replace the book with an identical copy that did not violate the Copyright Act or receive thirty dollars from Amazon.com. (31) Amazon.com reached a settlement with the plaintiffs on September 25, 2009. (32) The settlement was with the two named plaintiffs only, Gawronski and Bruguier, not the entire affected class--the remaining class members therefore still have standing to sue Amazon.com on related grounds. (33) In the settlement, Amazon.com agreed to restore marginal notes for all affected users who had made notes on their previous copies of the deleted books. (34) Amazon.com also agreed that, for all books purchased under the original Terms of Use, which granted

      the Kindle purchaser the "non-exclusive right to keep a permanent copy" of each purchased Work and to "view, use and display [such Works] an unlimited number of times, solely on the [Devices] ... and solely for [the purchasers'] personal, non-commercial use," it will not remotely delete or modify these books from Kindle devices purchased or being used in the U.S. (35) There were, however, some exceptions to the settlement: Under the settlement, Amazon retains the right to continue to unilaterally delete books from Kindle devices if: (a) the user consents, (b) the user requests a refund or fails to pay for the book, (c) a judicial or regulatory order requires deletion, or (d) deletion or modification is necessary to protect the user, the Kindle device or Amazon's network. In addition, Amazon agreed to pay a $150,000 fee to the plaintiffs' counsel, which in turn agreed to "donate a portion of that fee to a charitable organization that promotes literacy, children's issues, secondary or post-secondary education, health or job placement." (36) Faced with the risk of paying damages to a large class of its customers, Amazon.com also suffered a media backlash. (37) Blogs and news articles (and the complaint itself) pointed to the Big Brother-like deletion. (38) The invasiveness of the deletion seemed to irk Kindle users more than a simple breach of contract would have, especially since Amazon.com had already refunded the purchase price of the books by the time the story had attracted much attention. (39) The realization that Kindle e-books were unlike traditional paper books seemed to be sinking in; the Kindle is not a private bookshelf unreachable by the seller, but is in fact a device constantly tethered to an online seller. (40) A tethered device allows the seller much greater access to its goods than that to which many people are accustomed. Devices like the Kindle, assuming their popularity will continue as their prices drop and their availability rises, raise new legal issues for book buyers and are changing not only the way people read books, but also the way people own books. Applying the CFAA to unauthorized use of tethered devices could help regulate behavior and protect people's rights as book owners.

   3. Historical Background: Expansion and Restriction of the CFAA

      The...