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July 31, 2009 5:10 PM

Class Action Accuses Amazon of Acting Like Big Brother

Posted by Francesca Heintz

We'll admit it. We're pretty intrigued by the Kindle over here at The Am Law Daily. Although most of us still read books the old-fashioned way, we occasionally peek over the shoulders of fellow commuters to check out what they've downloaded.

Now users of those Kindles we've coveted can join a class action suit filed Thursday by Chicago-based plaintiffs shop KamberEdelson that alleges Amazon violated the device's terms of use when it deleted copies of George Orwell's "1984" and "Animal Farm" from Kindle users' electronic libraries.

The complaint, filed on behalf of two plaintiffs in federal court in Seattle, claims Kindle's terms of use gives owners "the nonexclusive right to keep a permanent copy of the applicable Digital Content and to view, use, and display such Digital Content an unlimited number of times.”

One plaintiff, high school student Justin Gawronski, says he saw his copy of 1984 "vanish before his very eyes" as he was powering up his Kindle to work on a summer homework assignment. (The WSJ's technology blog spoke with Gawronski for a story it posted Thursday.)

Following the public outcry a few weeks ago, Amazon apologized and denied claims that it was acting like Big Brother. After explaining it had deleted the books after finding out they had been added to the Kindle store by a company that didn't own the rights, Amazon refunded customers' money and vowed never to do it again.

But that didn't stop legal experts from debating whether Amazon had acted properly. (We interviewed Venable IP partner George Borkowski on that very subject a few days ago.)

The complaint says Kindle owners were harmed because notes that readers had stored on the device while reading the books had also been deleted. Although the notes are still accessible in a separate file, the plaintiffs allege that they are of no value on their own.

 "A note such as 'remember this paragraph for your thesis' is useless if it does not actually reference a specific paragraph," Gawronski says in the complaint.

Jay Edelson, the lead lawyer on the case, has broken the plaintiffs group into three Orwellian groups called "the Kindle class," "the Big Brother class," and the "Big Brother Work-Product subclass."

The Kindle class includes everyone who owns or has owned a Kindle (including our fellow commuters); the Big Brother class is anyone who purchased an e-book through the Kindle store that was remotely deleted; and the subclass is everyone in both classes, plus those who lost notes.

Edelson, who is handling the case pro bono, told us earlier this week that he will donate any money he receives on the case to a charity, as long as Amazon agrees to handle the matter quickly. It is unclear what the plaintiffs will do with their cut, though Edelson says they haven't made any specific damages demands at this point. 

"We’re really fighting for the principle behind this which is people’s property rights in the Internet age,” Edelson says. (The firm also issued a press release.)

Amazon did not return requests for comment.

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