September 2011, Volume 97, Issue 5|
Remote Deletion Technology, License Agreements, and the Distribution of Copyrighted Works
97 Va. L. Rev. 1223 (2011)
In July 2009 Amazon Kindle users, who had purchased a version of George Orwell’s novel 1984, discovered that this e-book had been removed from their devices. This incident illustrated a new development in the business of distributing copyrighted works: remote deletion technology. Previously, when works were distributed on physical media, once copies were widely disseminated, it was very difficult, if not impossible, to collect these copies if the distribution was later found to be improper. Now, many works are distributed electronically to devices that remain in contact with the distributor. The combination of this communicative link plus the licensing–as opposed to an outright sale-of digital copies allows distributors to maintain control over the content stored on devices of consumers. With remote deletion technology, the entity that controls the device has the ability to achieve instantaneous, inexpensive, and complete recall of previously distributed copies.
This ability is unprecedented and has the potential to undermine important public interests protected by the Copyright Act. Because of this potential threat, courts likely will be called upon to determine whether license agreements that grant remote deletion powers should be enforced. This Note argues that when there are adequate alternatives to secure permanent ownership of copies of a work–i.e. copies not subject to potential remote deletion–license agreements that grant this power should be respected. When a copyrighted work is distributed exclusively through license agreements that enable remote deletion, however, and there are no alternative means to acquire permanent ownership in this work, courts should find such license agreements preempted by the Copyright Act.
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