They Know What You Are Reading – Every Word of It

A confession: I never finished Marcel Proust’s Remembrance of Things Past (aka In Search of Lost Time); neither in English nor in French. I did finish Haruki Murakami’s IQ84; all 1186 pages of that book. Moby Dick, too, even the whale dissection parts. I have high hopes for completing David Foster Wallace’s Infinite Jest. But I wouldn’t want the author or the publisher to know what I had finished, nor what my lack of time, tedium, or distraction had caused. I wouldn’t want them to know which sections I lingered on and re-read. Some readers of Fifty Shades of Grey might really not want such behavioral information shared.

A recent NPR story highlighted a relatively new development. EBook distributors like Amazon and Apple, publishers, and maybe authors can or will be able to collect and share highly specific data on end-user (the people who used to be readers) of eBooks.

Obviously, in the world of the physical book, the publisher and author had no such data. The most data available might be the discovery of a used book giving off clues via an old bookmark, the cessation of handwritten notes, and coffee stains. Not exactly what is today called Big Data.

But with this new technological capability, authors could be like radio programmers (who use listener preference data to select which songs to play) learning which sections of eBooks are read the most, what sections turn off readers, and when and where readers’ eyes glaze over.

Would knowledge of what readers read help create more user-friendly books? Or will authors become too self-aware, too self-conscious, and as a result write to pander to their readers’ darker instincts?

The legal issues relating to eBooks are very similar to those relating to websites. But, reader expectations derived from the print world may be different. Are the typical kinds of privacy policies that alert end users of websites sufficient to the task of giving readers fair notice of the capability to collect, reuse, and disclose eBook user data?

In reaction to the disclosure of video rentals by Robert Bork in his Supreme Court confirmation hearings, The Video Privacy Protection Act was passed in 1988 to prohibit “video tape service providers” from disclosing certain personal information about video rentals outside the ordinary course of business. Should Congress give consideration to the privacy of eBook readers? Should readers be able to opt-in or opt-out with specific privacy controls as Facebook provides (to some extent)? Or is collection and disclosure of this information about our reading all part of the grand bargain that most of us almost inevitably accept under which we obtain access to data on the one hand and we lose privacy on the other hand?

No, I don’t know how much of this posting you’ve read. Not yet.

In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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