Readers Need Help from Authors and Publishers to Retain Digital eBook Rights
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I am going to get back to Google Book Settlement, I promise, but this Sunday I really wanted to address the topic of ebook ownership given the Orwellian actions of Amazon. For those who are unaware, two weeks ago Amazon failed to notice that two Orwell titles (1984 and Animal Farm) were being illegally sold in the Kindle store. These books are in the public domain in other countries, but not the U.S and since the Kindle is available only to U.S. residents the sale of these Orwell titles was improper.
The U.S. Kindle owners had no idea, of course, that the books that were made available were illegal copies. It was for sale at Amazon, for goodness sakes. One might be excused for thinking that when one pressed “Buy It Now”, one was buying a legitimate copy.
Then one evening Amazon accessed all of the Kindles that had these illegal copies and removed them, reimbursed the consumer, and left without notice. It’s the lack of notice and invasion of privacy that was shocking and frightening to users and observers and Amazon’s actions further served to emphasize that books in the cloud are only lent to an owner for a life term (and the “life” can be dependent on device rather than owner). In Amazon’s case, it was perfectly within its legal right to take away any book to which it deems the owner should not have access. The Kindle Terms of Service state this explicitly.
What then is the reader’s choice? My personal choice is to strip the DRM, or remove the software that wraps around the digital book content. I do this so that I can future proof my book collection, keep backups that are easily accessed and converted to new formats, and to prevent any bookstore from hobbling my access. However, I have always operated under the theory that to strip the DRM is to violate the Digital Millenium Copyright Act, essentially a federal offense. Under the DMCA, the law states:
(a) Violations regarding circumvention of technological measures.–(1)(A)No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter
17 U.S.C.A. § 1201 (a).
U.S. v. Elcom Ltd. is a district court decision handed down in the Northern District of California. 203 F.Supp.2d 1111 (N.D. 2002). The Elcom case involved the prosecution of Dmitry Sklyarov, a Russian Ph.D. student who developed a program that stripped the DRM from an encrypted PDF. The federal indictment accused Skyarov of writing software code that violated the DMCA. Sklyarov was arrested, imprisoned, released on bail, and ultimately acquitted by a jury. Prior to being acquitted, Sklyarov moved to dismiss the charges on various grounds. The Elcom decision stated that all tools that enable circumvention of use restrictions are banned. 203 F.Supp.2d at 1124. In layman’s terms, the court said that the DMCA bans all software that helps a person get around DRM.
The court carefully noted that the DMCA did not restrict fair use provisions in Chapter 17 of the US Code aka Copyright Law. The language of DMCA § 1201(c)(1) states:
Nothing in this section shall affect rights, remedies, or defenses to copyright infringement, including fair use, under this title [17 U.S.C.A. § 1 et seq.].
In fact, the decision implied that fair use can include stripping away the DRM (circumventing use restrictions) but that this might be made difficult because of the ban on DRM stripping software. Id. at 1125
Fair use of a copyrighted work continues to be permitted, as does circumventing use restrictions for the purpose of engaging in a fair use, even though engaging in certain fair uses of digital works may be made more difficult if tools to circumvent use restrictions cannot be readily obtained.
The Elcom decision went on to state:
Courts have been receptive to the making of an archival copy of electronic media in order to safeguard against mechanical or electronic failure. See Vault Corp. v. Quaid Software Ltd., 847 F.2d 255, 267 (5th Cir.1988). Making a back-up copy of an ebook, for personal noncommercial use would likely be upheld as a non-infringing fair use. But the right to make a back-up copy of "computer programs" is a statutory right, expressly enacted by Congress in Section 117(a), and there is as yet no generally recognized right to make a copy of a protected work, regardless of its format, for personal noncommercial use. There has certainly been no generally recognized First Amendment right to make back-up copies of electronic works. Thus, to the extent the DMCA impacts a lawful purchaser’s "right" to make a back-up copy, or to space-shift that copy to another computer, the limited impairment of that one right does not significantly compromise or impair of the First Amendment rights of users so as to render the DMCA unconstitutionally overbroad.
Id. at 1135.
The problem is, as the Elcom decision noted, that there is no specific law that permits the archiving of ebooks for personal use, with or without stripping the DRM. Some people argue that under the Sony Betamax case that determined time shifting was fair use (time shifting involved the recording of television shows to be watched at a later time), format shifting would be appropriate. Format shifting being the stripping of DRM from one format (say MS Lit) and converting it to epub to be read on the iPhone or Sony Reader.
Notable others argue that the Sony case was pre DMCA and therefore no longer the litmus test for fair use.
Equipment manufacturers in the twenty-first century will need to vet their products for compliance with Section 1201 in order to avoid a circumvention claim, rather than under Sony to negate a copyright claim.
1 Nimmer on Copyright (1999 Supp.), § 12A.18[B].
In Lexmark Intern., Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004). a concurrence to the majority decision argued that the DMCA should be read to require the Plaintiff (unhappy party like a publisher or author) to show a “purpose to pirate” on the part of the Defendant (the DRM stripper). The Lexmark case involved a company (SCC) who had developed a chip that supplanted the Lexmark chip and allowed non Lexmark cartridges to be used in the printer. The majority decided in favor of SCC, determining that there was no infringement of the software code that Lexmark used in its chip. Judge Merritt agreed with the result but argued that “purpose to pirate” had to be pled and proven by the unhappy people wanting to use DMCA as a sword.
Nearly all the caselaw that exists involves the manufacturer of equipment (like SCC) or the creator of software and not the end user, the reader. Most of the cases that have been decided have gone in favor of the copyright holder. [Fn1]
What readers really need and deserve is the right to own their digital books. In owning them, readers deserve the right to be able to strip the DRM, backup the file, and convert to other formats. Authors and publishers, the copyright holders, need to advocate for the reader. Authors’ Guild, RWA, SFWA, NINC, AAP, and others need to draft legislation that allow readers to protect themselves from businesses ceasing to support ebooks, from computer malfunctions, from retailer mistakes, and lost hardware.
One reader noted to me privately that she had lost her Sony Reader on the plane. She’s not able to move those Sony ebook files to a Kindle or an iPhone or any other reading device. Those books should not be lost to her, but they are unless she buys another Sony. But what if Sony goes out of the book selling business. What then? Readers should have the LEGAL right to protect themselves from digital mishaps that are not of their making. If the current law makes us criminals for wanting to own books, then the copyright holders should advocate for changing that law for the following reasons:
1) DRM stripping tools can still be banned (meaning they will be developed underground and never be sold for profit).
2) Readers who lose legitimately purchased copies of their books won’t be tempted to seek replacements from a priated source. In other words, don’t give a reader a reason to seek out the pirate culture. Let her remain in blissful ignorance of that arena.
3) Criminalizing an activity that enables the reader to read her own legimately purchased books engenders illwill toward the author and the publisher and in this market, ill will is something the publishing community can scarce afford.
Of course, eliminating DRM altogether, as the music industry has, would negate the need to enact legislative reform.
FN1: See e.g., Davidson & Associates v. Jung, 422 F.3d 630 (8th Cr. 2005) (shutting down an alternate computer gaming site that was based on a legitimate gaming network); In re Aimster Copyright Litigation, 334 F.3d 643 (7th Cir. 2003) (shutting down a fileswapping service on the grounds it was used primarily for users to exchange copyrighted music); Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294 (S.D.N.Y. 2000) (finding that the linking to and posting the software program DeCSS which stripped DVDs of their encryption violated the DMCA); 321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F.Supp.2d 1085 (N.D. Cal. 2004) (refusing to allow 321 to sell its DVD software program because part of it circumvented the DVDs encryption code); RealNetworks, Inc. v. Streambox, Inc. 2000 WL 127311, No. 2:99CV02070. (W.D. Wash 2000) (disallowing a software program to circumvent the wishes of the copyright owners to NOT have their works copied and saved).