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Federal Communications Law Journal

Document Type

Note

Publication Date

3-2011

Publication Citation

63 Federal Communications Law Journal 535 (2011)

Abstract

In 2009, Amazon.com decided to correct a potential copyright violation by deleting e-books by George Orwell and Ayn Rand from the Kindles of users who had already purchased the offending texts. Two of those users, Justin Gawronski and Antoine Bruguier, claimed that Amazon.com had violated the Computer Fraud and Abuse Act (CFAA) by accessing their Kindles without authorization. The plaintiffs also relied on other causes of action, including breach of contract and trespass to chattels. Although the dispute quickly settled, the Gawronski lawsuit remains a useful case study that shows why the CFAA is a useful protection for consumers. Recently, courts have begun to restrict the application of the CFAA to cases of computer hacking instead of its more expansive applications in employment law. If the statute were restricted along these lines, consumers would lose the unique protections of the CFAA. As it currently exists, the CFAA provides several advantages to consumers that other causes of action do not. First, the CFAA provides a way for consumers to access federal courts, which can ensure a more uniform treatment of Internetbased contracts than does state law. Furthermore, the CFAA also has the conceptual advantage of conceiving of e-book ownership as a bargained-for set of rights in a file. This concept more accurately reflects the reality of the ebook market than common law approaches. To take further advantage of these benefits, a revision of the CFAA expressly creating a cause of action for tethered e-book readers should be added. Such an amendment would prevent companies from attempting to contract around the CFAA.

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