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Are Highlights “Content?” Are they “Communication?” Amazon Thinks So

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There has been much hubub about Amazon peeking over the shoulder of its Kindle users, possibly without their asking. How are they justifying it? They may be treating your highlights as “communication” as defined by their web terms of use agreement. Highlighting = content creation = contribution. That’s a new one.

Amazon has been grabbing that highlighted info off of user’s devices and aggregating it for publication on their site. The page where they display the info looks like this.

I own a Kindle and I don’t recall any opt in or out of transmitting such info. I’ve combed the Kindle agreement, which is mostly about wireless services for “Whispernet.” Amazon’s included wireless update service for Kindle. I had to poke around for quite some time before I could come across anything that could be construed as justifying the theft of privately created data.

Nine paragraphs into their “Conditions of Use” statement for Amazon.com, you find the following

REVIEWS, COMMENTS, COMMUNICATIONS, AND OTHER CONTENT

Visitors may post reviews, comments, photos, and other content; send e-cards and other communications; and submit suggestions, ideas, comments, questions, or other information, so long as the content is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of “spam.” You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. Amazon reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content.

If you do post content or submit material, and unless we indicate otherwise, you grant Amazon a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media. You grant Amazon and sublicensees the right to use the name that you submit in connection with such content, if they choose. You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify Amazon for all claims resulting from content you supply. Amazon has the right but not the obligation to monitor and edit or remove any activity or content. Amazon takes no responsibility and assumes no liability for any content posted by you or any third party.

That bold section may hold the key. If Amazon is arguing that an user’s highlighting on their Kindle device constitutes posting content or submitting material in any way, then they could make the case that those additions fall under this section of their agreement.

The language is broad, and they could easily stretch it to cover this behavior. Amazon users already silently contribute to the “users who bought this also bought” feature on the site.

Do I believe Amazon is evil? No. Dumb? Maybe. Deficient in short term memory? Youbetcha.

How much heat did they take from the regular blogosphere, not to mention the EFF crowd when they quietly crept into our rooms that night last year and removed Fahrenheit 451 from our devices?

Why risk it? Why not just ask? Why not say, to the users, “Hey, we have this incredible idea, and we’d like your help. We want to build a library of the most amazing quotes and passages from all the books in our library, and we can do it if you allow us to see what you are highlighting.”

For now though, we are left nervously staring at the little white device in the corner, wondering what juicy tidbits from last nights reading it is whispering away into Amazon’s indemnified ears.

I was never this suspicious of my books.

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