An Orwellian digital preservation challenge

For the past few days, the news media and the blogosphere have been abuzz about Amazon.com's decision not only to stop selling mistakenly published e-versions of George Orwell's Animal Farm and Nineteen Eighty-Four but also to delete purchased copies of the books from indvidual users' Kindle reading devices. Amazon has defended its actions on the grounds that it was defending the intellectual property rights of the Orwell estate and that it had issued refunds to purchasers, but it didn't give any advance warning to users, many of whom were stunned to find that the books had simply vanished from their Kindles.

To date a lot of the media coverage has focused on Kindle users' annoyance, Amazon's PR fumblings, or the, um, Orwellian nature of Amazon's actions. However, as Farhad Manjoo, the consistently top-notch Slate technology columnist, points out, Amazon's actions ought to be of grave concern to anyone interested in the free exchange of ideas or the preservation of cultural heritage materials: if corporations such as Amazon and Apple, which frequently removes unathorized applications from iPhones, have the technical capacity to delete materials from users' computers or other devices, it's highly likely that at some point a court or a government will compel them to do so. In the West, such orders will likely be driven by copyright or libel concerns. In other parts of the world, the desire to limit citizens' access to information will likely be a prime motivator.

Of course, courts and governments have always, for various reasons, influenced what and how materials are published, and publishers themselves sometimes opt to withdraw materials even if they are not compelled to do so. However, as Manjoo points out, our networked digital age opens up the possibility that "in our paperless future -- when all books exist as files on servers -- courts" and governments will likely "have the power to make works vanish completely."

In a paper-based world, the ability of governments, courts, and publishers to make a book vanish is pretty limited. For example, I own a book that was banned in Britain and withdrawn from circulation in the United States. The first version of While England Sleeps, David Leavitt's very good novel about an affluent English writer and his working-class lover set against the backdrop of the Spanish Civil War, was well-received when it was released in 1993. However, it aroused the ire of Sir Stephen Spender, who asserted that Leavitt (who freely admitted that Spender had been the model for While England Sleep's protagonist) had plagiarized from his memoir of life in the 1930s and had violated his moral right not to have his work adapted against his will. Spender sued in a British court, and Leavitt's publisher withdrew the book from circulation and arranged to have all of the unsold copies in Britain "pulped" (i.e., destroyed). The following year, a slightly revised version of the book was published in the United States.

By the time Leavitt's publisher decided to take action, it had already distributed 30,000 hardcover copies of the book in the United States. A substantial number of these copies had already been sold, and I found one of them at a secondhand book shop in 1995 or 1996; I still recall my delight at having obtained one of the original copies. A little while later, I picked up a paperback copy of the revised version, and at this moment both books are sitting on a shelf in my living room. I've never systematically compared the two versions, but I could if I wanted to. Moreover, I'm sure that at least a few of those 30,000 hardcover copies made their way into academic libraries, thus enabling people interested in Leavitt's work to study both versions very closely -- or to compare the first version of the book with Spender's writings.

If a controversy akin to that which surrounded While England Sleeps erupts twenty years from now, the court or the publisher might want not only to bar future sales of the book and destroy the unsold copies but also to perform the electronic equivalent of entering my apartment and removing the offending title from my bookshelf -- and to do the same thing to every other person and institution that held a copy of the book. If I lived in a country that lacked a strong tradition of individual liberty, the order to pull the book might come directly from a government censor.

Of course, there are limits to such Orwellian scenarios. Given the wide variation in libel, plagiarism, and other laws from country to country -- Spender's suit likely would have been tossed out of a U.S. court -- digital materials that are destroyed in one country may continue to exist in another. Moreover, as Manjoo points out, file-sharing networks and other clandestine distribution channels will no doubt allow some electronic works that have been deemed illegal -- for reasons of copyright or content -- to survive. However, he is also right that the "anonymous underground movements that have long sustained banned works will be a lot harder to keep up in the world of the Kindle and the iPhone" -- and that the resulting cultural losses will likely be substantial.

Manjoo concludes that, in the short term, people should avoid buying Kindles until Amazon clearly states in its terms of service agreement that it will not delete content remotely or, better yet, divests itself of the technical ability to perform such deletions. That's a good piece of advice. Moreover, he's absolutely correct that what we need are new laws that plainly spell out and safeguard the rights of end users of networked devices such as Kindles and iPhones.

This Kindle controversy also underscores the need for cultural heritage institutions to ensure that governments, courts, and publishers cannot render books, artwork, and other cultural materials non-existent. This endeavor will require work on a number of fronts: advocating for amendments to copyright law that reinforce cultural heritage institutions' right to make preservation copies of electronic materials, agitating for passage of new laws that ensure the preservation of at least a few copies of digital works deemed illegal, and proactive efforts to collect digital materials that arouse the ire of authoritarian governments. A lot of good work that addresses these issues is already underway, but we need to do more -- and to do it soon.