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Amazon's ironic decision to delete Kindle users' copies of 1984 shows the old rules about copyright, ownership and privacy don't apply to today's technology

By Ian Kerr, Citizen Special September 15, 2009

A little over a year ago, in one of the most important privacy cases ever heard by the Supreme Court of Canada, Justice Ian Binnie sought to allay concerns that we are sleepwalking into a surveillance society with the following remark: "On these occasions, critics usually refer to 'Orwellian dimensions' and 1984, but the fact is that 1984 came and went without George Orwell's fears being entirely realized, although he saw earlier than most the direction in which things might be heading."

Like most judicial pronouncements with staying power, I still haven't quite figured out what he meant by this. Was the judge simply saying that the worries expressed by privacy advocates are sometimes overblown? Or was his clever, lawyerly use of the word "entirely" a tongue-in-cheek expression of genuine concern?

Either way, Justice Binnie's remark has caused me to wonder what it would take to say that Orwell's fears are "entirely realized."

I am guessing the threshold must be rather high.

After all, Orwell conjectured about a world that even David Lynch would agree is wild-at-heart-and-weird-on-top. It wasn't just about big brother, doublethink or the telescreen. There was also that crazy stuff about The Ministry of Truth and its ability to make information appear and disappear on a whim. As Orwell described it:

"This process of continuous alteration was applied not only to newspapers, but to books, periodicals, pamphlets, posters, leaflets, films, sound-tracks, cartoons, photographs -- to every kind of literature or documentation which might conceivably hold any political or ideological significance. Day by day and almost minute by minute the past was brought up to date."

Powerful stuff, 1940s science fiction is.

Skip forward exactly 60 years to the summer of 2009. There I was on a perfect July day at the Universitat de Barcelona, about to launch into my first lecture on Isaac Asimov's Laws of Robotics. Just before I did so, a law student from Puerto Rico interjected, asking me about the device that I was using to read my lecture notes.

"Its called an iLiad," I said.

"Is that the same thing as a Kindle?" she asked, referring to Amazon.com's increasingly popular e-book reader.

"Nope," I said. "Apples and Oranges. The Kindle was designed first and foremost as a distribution vehicle for Amazon books, so its architecture is a proprietary system that uses digital rights management (DRM) to tether the downloaded content to the device, preventing copies from being easily made or transferred to other readers or machines. My iLiad, on the other hand, is an open source device that uses a Linux operating system, allowing anyone with know-how (not me!) to tinker with it and to create applications that improve its functionality for the broader community of users. I didn't buy my e-reader to download and consume popular novels. I chose the iLiad because it allows me to access a broader range of research documents, not to mention greater control over the information stored on my device."

It never really occurred to me at the time just how central my somewhat geeky response to that seemingly random question would be to the course itself, with its lofty ambition of examining how our philosophical conceptions of the law and our corresponding policy approaches change in the face of autonomic computing and robotics.

My lecture that day was an introduction to Asimov's brilliant idea that we can mitigate people's fears about robots (the "Frankenstein Complex") by programming the machines to "obey" certain rules. In essence, his three Laws of Robotics provided a system of automated permissions for what people could and could not do with robots. Instead of developing rules of human conduct and imposing them on people (as law and morality seek to do), the Laws of Robotics were rules designed by humans but programmed directly into the machines. For example, if a human tried to get a robot to injure another person or steal her books, the robot would shut down, refuse or otherwise render itself incapable of carrying out the command. It wasn't easy to convince or trick the robot into wrongdoing. The robot's positronic brain was hard-wired to do no evil.

Not surprisingly, my students loved thinking about the law and rule-following/rule-breaking behaviour through the lens of Asimov's adorable robots -- Speedy, Robbie and George-10. The challenge, of course, was to get them to see that Asimov's approach is by now as much science fact as it is science fiction.

As though by divine providence, a teachable moment was delivered by the Google Alerts robot to my inbox on the morning of my second lecture. Reports were starting to circulate that Amazon had auto-deleted copies of George Orwell's 1984 and Animal Farm from law-abiding Kindle owners. According to the news reports, Amazon mistook a "no" for a "yes" regarding the publisher's decision on e-books. Fearing serious sanction from the copyright owners after selling many e-copies, Amazon capitulated. Using its robotic powers to trespass within the digital libraries of all Kindle customers, Amazon electronically "seized" Orwell's books. It was a classic Orwellian moment -- with a mouse click, The Ministry of Truth expunged the offending material without notice or permission, rectifying a mistaken past by replacing it with a perfected present.

Given that the driver of this news item was copyright, I sent my students the story and asked them to think about how automation technologies will change the way we think about copyright law.

It didn't take long for some of them to point out that the Kindle's DRM shifts the balance between the owner's ability to control and the customer's ability to access or use a work subject to copyright. Even though the end user licence for the Kindle suggests that once you "purchase" an e-book its yours, and even though the copyright in 1984 expired in Canada and several other countries back in 2000 (putting the work back into the public domain), Kindle owners found out the hard way that human laws can be superseded by robotic laws.

do oscar pistorius's prosthetic legs make him faster? that probably depends on whether you take two-leggedness as the baseline

ottawa citizen, january 16, 2008

he who would learn to fly one day must first learn to stand and walk and run and climb and dance; one cannot fly into flying.

- nietzsche

in a few minutes, it will be midnight. I am sitting on the balcony of my rented san juan apartment. I just finished reading the IAAF report thwarting the olympic ambitions of oscar pistorius, the south african sprinter whose spirit has captured the imagination of the 24 students I am here to teach.

we started our three-week exchange seven days ago in ottawa, where 12 of my university of ottawa law students hosted 12 students from universidad de puerto rico. together, these two dozen outstanding students are enrolled in a course that I call "building better humans?" (please note the question mark in the title.)

one of the goals of this interdisciplinary course is to illuminate the murky line between therapy and enhancement in a world that seems to be drifting from "natural selection" toward what bioethicist john harris calls "deliberate selection."

what happens to people when science and technology are aggressively used to alter the human condition? what does the future hold for health and humanity as we move from Darwinian evolution to self-directed enhancement medicine?

in this three-week course, we are tackling such questions and thinking about whether or how to regulate emerging health enhancements in light of an evolution that operates at an exponential rather than a glacial pace.

mr. pistorius was previously unknown to most of my students.

but he is now poised to become a household name before the olympic torch lights the stage in beijing.

when oscar was born without fibulas 21 years ago, his parents had to make a difficult decision shortly before his first birthday: should they conform to societal norms by way of a medical intervention that would amputate both of his legs at the knee so that he could be fitted for prosthetic limbs? Or should they leave him with the legs he was born with, thus affirming his vari-ability? without knowing that bionics would, within a mere 20 years, transform from science fiction to science "fact," and without knowing that their son would become known as "the fastest man on no legs," they chose the route of medical intervention.

two decades later, and right around the time that the sports world began watching mr. pistorius close in on olympic qualifying times, the IAAF (international association of athletics federations) released rule 144.2, which prohibits the use of "any technical device that incorporates springs, wheels or any other element that provides the user with an advantage over another athlete not using such a device." the rule was meant to ensure that the olympics remain "pure" -- that the competition remained between athletes and not between sports equipment manufacturers.

not long after the promulgation of 144.2, mr. pistorius sought confirmation that his carbon fibre prosthetics -- without which he could not compete -- did not run afoul of the rule. on monday, three days after I studied the issue with my students, the IAAF released its decision: mr. pistorius is now the fastest man on two springs.

the IAAF decision was based on an "independent scientific study," a biomechanical and physiological analysis of long sprint running comparing mr. pistorius with five two-legged athletes capable of similar levels of performance. among other things, the so-called "objective results" of this study revealed the following:

(1) "Pistorius was able to run with his prosthetic blades at the same speed as the able-bodied sprinters with about 25 per cent less energy expenditure";

(2) "the ... returned energy from the prosthetic blade is close to three times higher than with the human ankle joint in maximum sprinting"; and

(3) "the mechanical advantage of the blade in relation to the healthy ankle joint of a two-legged athlete is higher than 30 per cent."

on this basis, the IAAF concluded that mr. pistorius's prosthetic legs must be "considered as technical aids in clear contravention of IAAF Rule 144.2."

while it is tempting to jump on the bandwagon along with the many critics who rightly censure the IAAF for its inconsistent approach to what my colleague gregor wolbring has called "technological doping" (for example, pumping oxygen into your blood is prohibited but huffing and puffing in a little tent overnight till you achieve the same effect is not), there is something else that I find extremely curious about the decision.

rule 144.2 seeks to prevent athletes from using technology to gain relational advantages over one another. but as one of my students, ashley, astutely noted in class last week, the outcome of the analysis depends entirely upon which "other athletes" are chosen as the appropriate comparators. applying principles of equality law rather than biomechanics, ashley unpacked a key assumption within the study. although lauded as "objective" and "scientific," the study clearly privileges a certain body type.

those who work in the field of (dis)ability studies are all too familiar with this approach. the medical model upon which it is based imposes biological "norms" as the baseline for any, and all, analysis. through the narrow lens of biomechanics and from the exclusive perspective of two-legged runners, oscar pistorius's "cheetahs" are seen to confer a physiological advantage.

but even gert-peter brueggemann (the scientist who conducted the study) noted last week in an interview with the new york times that his scientific observations did not necessarily translate to a finding of general advantage.

mr. brueggemann, like every other scientist, is well aware that the outcome of every experiment depends entirely on the determination of its control groups. as a young einstein realized in his daydreams during his day job in the patent office, in science, assumptions about one's point of reference are key.

so what would happen if the IAAF had used a different point of reference in the study? instead of presuming two-leggedness as the baseline and then determining whether mr. pistorius deviated significantly from that norm, what if the interpretation of rule 144.2 adopted a relational approach that also took into account the many disadvantages experienced by mr. pistorius (biomechanical and social)?

I suspect that such an approach would not have yielded a result so clear-cut.

while it is important to be fair to the species-normative biological athletes against whom mr. pistorius hopes to compete, it is equally important to be fair to the bionic runners who wish to be able to become olympians, not paralympians. able, not in terms of being fast enough, but in terms of gaining access to the competition.

sports, like the practice of medicine, stands at a crossroad. in each case, it is no longer clear whether to favour natural ability or ultimate performance. as we continue to technologize sports (for that matter, as science continues to seek technological mastery of the body), the deepening merger between human and machine will only make these questions more difficult. as gregor wolbring has asked, once biological runners get "lapped" by their bionic counterparts, will the paralympics become the olympics and vice-versa?

and what does all of this mean for people?

amid all the hype about south korea's proposed robot charter, let's not forget the more important question of whether robots should assume human roles in the first place

ottawa citizen, may 4, 2007

a few months ago, as part of its bid to put a robot in every household by 2020, the south korean ministry of commerce, industry and energy announced its intention "to draw up an ethical guideline for the producers and users of robots as well as the robots themselves ..."

responsible computer programming, corporate accountability and consumer protection in the electronics sector -- these are all good things.

pause. rewind. replay.

what? an ethical guideline for the robots themselves?

anticipating an event horizon -- only one bar mitzvah away -- in which intelligent service robots become a part of daily life, the south korean call for a "robot ethics charter" smacks of the science fiction of isaac asimov.

when thinking through the south korean agenda, asimov is definitely worth considering. intentionally or not, his fiction charted a path that has inspired the actual development and implementation of artificial intelligence (AI). asimov was totally underwhelmed by mary shelly's frankenstein and the "dull, hundred-times-told tale" about humanly created, intelligent monsters that will rise up to destroy us. so he constructed a new narrative where robots "were machines designed by engineers, not pseudo-men created by blasphemers."

south korea certainly seems to be taking its cue from asimov's writings, imagining friendly, intelligent robots that are dedicated to helping people. asimov's famous robbie, for example, was a nursemaid tasked with caring for a child who loved the robot like a best friend. asimov went to great pains in his storytelling to normalize robots -- to undo a technophobia he dubbed the "frankenstein complex."

to further ensure that humanity would remain undaunted, the prolific asimov articulated the three laws of robotics that he subsequently described as his most enduring literary contribution. expressed in 61 words and examined in thousands of stories and letters over a period of more than 40 years, asimov imagined what would happen if we were able to embed core morality into machine code and by doing so ensure that "it would never even enter into a robot's mind" to intentionally break the following precepts:

- a robot may not injure a human being, or, through inaction, allow a human being to come to harm.

- a robot must obey orders given it by human beings, except when such orders would conflict with the first law.

- a robot must protect its own existence as long as such protection does not conflict with the first or second law.

leaving aside the thorny philosophical question of whether an AI could ever become a moral agent, it should be relatively obvious from their articulation that asimov's laws are not ethical or legal guidelines for robots but rather about them. the laws are meant to constrain the people who build robots of exponentially increasing intelligence so that the machines remain destined to lives of friendly servitude. the pecking order is clear: robots serve people.

and to the extent that it even contemplates a code "for robots themselves," the korean robot ethics charter is almost certain to follow suit.

it is interesting to ponder asimov's laws in the context of technological development in south korea and elsewhere. for example, could samsung's intelligent surveillance & security guard robot be programmed to correctly resolve the tension between asimov's first and second laws without abandoning its fundamental purpose? funded by the south korean government to overcome the limitations of human soldiers guarding its borders to the north, samsung's machine-gun sentry robots (check 'em out -- they're on YouTube) use precision automation technologies to discriminate friendly from enemy activity and guarantee high shooting accuracy without the need for human presence. what will the SK robot ethics charter say about these?

when I began my academic career a decade ago, the uniform law Conference of canada commissioned me to conduct a study on the far less ominous but related question of how to deal with computers that purport to negotiate and enter into contracts completely independent from human review or interaction. without a law resolving this novelty, there was concern that the future of e-commerce was uncertain. in the years since, as canada research chair in ethics, law and technology at the university of ottawa, i have been gearing up for a book project tentatively titled: minding the machine -- a dual investigation involving: (i) the AI project of putting minds into machines; (ii) the corollary ethical and legal project of designing appropriate prohibitions and oversight mechanisms to mind those machines.

until the silicon hits the sidewalk, i remain doubtful whether south korea's robot ethics charter will match the media hype that it has received. (one author went so far as to style it a "hippocratic oath for androids.")

my skepticism about all of this lies mainly in the subtext. talk about burying the lede! in my view, the south korean agenda has little to do with machine intelligence or roboethics proper. once you sniff your way through the subterfuge of south korea's jetson-esque utopia, you will see that there are two very traditional drivers underlying all of this.

the first driver is financial. for better or worse, the south korean government has identified robotics as a key economic strategy in the coming decades. the BBC and the new york times report that millions of research dollars are being pumped into robotics in south korea. recognizing market saturation for industrial and military robotics, the strategy is to create a global market that does not currently exist -- a market for domestic service robots. south korea is hoping that if they build it, we will come.

the second driver is social. with the lowest birthrate in the world, it is predicted that south korea will face significant workforce shortages in the coming years.

the current strategy for making up the shortfall includes developing service "bots" such as asimov's robbie that can perform a range of domestic chores, and become companions and caregivers for the young and old.

in any case, if you find the idea of using service robots to solve domestic labour issues somewhat exotic, it should be remembered that such proposals have longstanding precedents in north america. a nice example was offered me by a brilliant cyberfeminist colleague in the following corporate slogan from the 1920s: "clothes washing is a task for a machine, not for your wife. turn the hard work into play. buy her a bluebird."

in light of this slogan, it is intriguing to note the first of two central reasons offered to the media for creating the robot ethics charter by one of its drafters. recognizing the concerns that accompany the substitution of robots for people as caregivers and companions, the drafter ponders, "imagine if some people treat androids as if the machines were their wives."

before we spend valuable resources commissioning working groups to invent "no-flirt" rules or other robotic laws to avoid inappropriate human-machine bonding, isn't there a logically prior line of questioning about whether a declining birthrate is truly a problem and, in any event, whether intelligent service robots are the right response?

a headline in the korea times a little over a year ago proclaimed a more intuitive approach: "gender equality essential to addressing low birthrate."

it is no coincidence that the word robot itself derives from robota -- a czech word that connotes involuntary servitude. aristotle was perhaps first to recognize the politics of automation, speculating that "[i]f every instrument could accomplish its own work, obeying or anticipating the will of others, chief workmen would not want servants, nor masters slaves."

was he right? could robots be a technology of emancipation? or does automation just as easily reinforce existing gender stereotypes and an unjust status quo?

the answer to these questions surely depends on how those robots are designed and used. not just the way they are programmed but, more broadly, the social roles and values that we ascribe to them.

despite my luddite sensibilities, i have always remained a reluctant optimist about the potential of ethically inspired automation technologies, AI and collective intelligence. i am an adamant believer in the general project of roboethics and ethical software design, and i commend much of the excellent research in these fields by groups like the singularity institute for AI and the european robotics research network.

at the same time, i am concerned about robotic laws, charters and other sleight-of-hand that have the potential to misdirect us from the actual domains of ethics and social justice. let us hope that i am mistaken in what i described as the true drivers of the south korean robotics agenda and that its robot ethics charter will exceed its pre-release hype. only time will tell.

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