Jul 27 2010
Disclaimer: While I am an attorney, the following should not be construed as legal advice. Each case, the application of law to that case, and each client and lawyer are unique to that particular case. If you feel like this is an issue which may affect you, please seek professional help.
On Mike Cane’s blog, Mike was bemoaning (reviling?) Adobe Digital Editions which is the software that encrypts all epubs, the so called industry standard.
And then add on top of all of that pain, the torment of requiring Adobe Digital Editions for DRM! It turned something simple -’ reading -’ into a process requiring a minimum set of technical skills. That would be like requiring people to pass a test about the Dewey Decimal System before they could use a public library!
This is a sad and true statement. Even within the DA crew, there are ADE problems. I don’t know if Jayne ever resolved hers even though she had me to help her (I failed to resolve her problem!). Software encryption or locks which ties your access to a digital book to a device or a software platform (like the nook or the Kindle) is called DRM or digital rights management. I get constant questions via email about how someone has lost access to their digital books. Remember the recent Fictionwise fiasco when agency pricing came along and Fictionwise had to pull content people had already purchased and downloaded?
The DMCA prevented circumvention although there were some (like me) who felt that stripping DRM was appropriate for personal purposes.
In the past few days, however, there have been some real shifts in the law on the issue of circumventing (bypassing) DRM. First, and arguably most important was the issuing of final rules by the Libarian of Congress (LOC) setting forth exemptions to the DMCA based on the recommendations of the Register of Copyrights. Now, how can the LOC do this? Because the DMCA specifically says that every three years, the Librarian of Congress can issue exemptions to the anti circumvention rules of the DMCA.
In the past, the exemptions have been paltry although in 2006, the LOC issued this exemption:
4. Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book's read-aloud function or of screen readers that render the text into a specialized format.
This exemption was renewed in 2010 over the recommendation of the Register of the Copyright Office and good until the next hearing period which will begin in two years. Exemptions are based on a class of work (literary works in ebook format) not the user. Therefore, one doesn’t need to be disabled in order to avail herself of the protection afforded by the exemption.
I’ve seen at least one person suggest that if there is an audio version, even at a higher cost, that the DMCA exemption does not apply but the class of work identified here are literary works distributed in ebook format thus, in my interpretation of this act, an audiobook is not a literary work distributed in ebook format. Audiobooks are generally treated as a sound recording and subject to different provisions of the Copyright Act. I’m open to being swayed to the other side on this issue.
In summary, I think the LOC says that a user can strip the DRM if the digital book’s encryption
- a) prevents user from enabling the book’s read aloud function OR
- b) prevents screen readers from rendering the text into a specialized form
and there is no other text version available, even at a higher cost, that would permit these features.
It should be noted that the LOC included this exemption over the recommendation of the Register who felt that the proponents of the exemption failed to do a very good job of convincing her that the exemptions were necessary.
More surprising than the renewal of the ebook stripping exemption is that the LOC says jailbreaking a phone and unlocking it to be used with another carrier is permissible. Jailbreaking is opening up the software system of a phone to install non authorized apps (my favorites are Activator and Backgrounder). Unlocking is breaking the connection between the phone and the carrier, allowing the consumer to use any carrier. So you can take your jailbroken and unlocked phone to Cingular or Sprint and have it activated with the government’s approval.
The legal justification for this was, among other things, that the jailbreaking or “the modifications that are made purely for the purpose of such interoperability are fair uses.” As Ars Technica went on to say, “Make no mistake: this was all about Apple. And Apple lost.” Apple actually showed up at the hearings and made vociferous arguments against this principle that was advanced by the EFF. The EFF won big concessions for consumers in this round.
I would have preferred to see the reasoning for the ebook exemption to be broad like the one for jailbreaking and unlocking of an iphone rather than based on access for disabled individuals but perhaps the court will move where the Copyright Office will not.
On Friday, the Fifth Circuit, a fairly traditional and conservative circuit, ruled that circumventing DRM is not enough to trigger the DMCA. (PDF Link). Based on questionable reasoning, the Fifth Circuit found that if the DRM doesn’t prevent the infringement itself, then bypassing it for viewing purposes doesn’t trigger the DMCA. This is a fairly big distinction. In the LOC case, it is essentially saying, yes, you may be infringing according to the DMCA but I have the power to grant exemptions (like a governor granting a pardon). But in the MGE UPS SYSTEMS INC v. GE CONSUMER AND INDUSTRIAL INC case, the court is saying bypassing DRM isn’t enough to trigger the DMCA.
It’s not a violation, the court says, because the DRM has to prevent the infringement or the unauthorized copying. Bypassing DRM doesn’t necessarily result in infringement, it only opens up viewing or access.
Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA's anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.
In other words, when I download a Kindle file that is protected, I can make and email a dozen copies of that file to my friends or even seed a torrent feed, all without bypassing the DRM. That’s unlawful infringement. But if I bypass DRM so that I can have access, then it’s not a violation of DMCA, so long as a copy isn’t created. Of course, this is only true in the 5th Circuit so I guess to be fully protected right now, I’d have to move to Texas or Louisiana. What the court decision doesn’t say is whether if I have access and want to strip for format shifting purposes whether that is a violation of the DMCA as you are technically creating a copy.
In neither the case of the DMCA exemptions or the GE case was the creation of the DRM circumvention tools authorized. This reminds me of the drug stamp tax. Even though the sale of drugs is illegal, drug dealers (or those who sell illegal drugs) must purchase a drug stamp when taking possession of a controlled substance. Failure to have the appropriate number of drug stamps on the controlled substance results in its own legal penalty (fines in my state) in addition to the actual prohibited possession and attempt to sell the drugs. So you can use the DRM circumvention tools but you can’t create them. (Like you have to have the drug stamp even though you aren’t supposed to be in possession of or selling the drugs).
The next go around for the LOC, however, the issue of exclusives might be a hot topic. The hearings will take place in two years and that will be the end of Andrew Wylie’s two year exclusive with Amazon. I would think that the Register and LOC would find that exclusives which tie consumers to one device would be offensive and that interoperability and access would be that much more vital.
The trend, though, does seem toward lessening the restrictions of DMCA. This doesn’t mean that DRM will be eliminated by publishers. They are free to included DRM and if they enable the text to speech function, DRM stripping wouldn’t be permitted (except, I guess, in the 5th Circuit). The reality is, though, one of the easiest ways to kill Amazon’s dominance continues to be disallowing DRM. DRM allows retailers like Amazon or Barnes and Noble to lock consumers into one device. Eliminating DRM would allow much more consumer freedom to shop around, allowing other retailers to build robust readerships based on something other than format.