Law professor Eugene Volokh has a couple of posts on Volokh Conspiracy on Amazon and the Orwell affair (here; here). As always, Volokh shows an impressive capacity to turn out high quality analysis with great speed (very irritating of him) but I stand my ground.
In my opinion, he focuses too much on how to cram the problem into the existing categories of copyright. This is important for any immediate legal action, of course, but not terribly interesting in the long term. For one thing, even as we speak, Amazon's lawyers are certainly drafting new terms of use that allow the company to protect itself in the future.
The real issue is that copyright law developed, and has been steadily adapted, to new technologies. Thus newspaper content used to be protected by the sheer impossibility of stealing it on any large scale without a big investment in printing presses. The nature of this technological regime determined what was necessary for the legal regime.
Similarly for the e-book. The technology is different, so the legal regime needs tweaking, or perhaps rebuilding to reflect the new reality. And that new reality is that we are all better off if Amazon has the right as well as the power to delete infringing materials.
How these issues will work out is indeterminable. Once, at lunch with some content people, I idly speculated "Maybe what we need is a clean-sheet rewrite of copyright law." They turned white with fear, or maybe rage, at the thought of the Hobbesian special interest war that any such effort would trigger,
