DRM: What did you buy? (An Essay.)

[gmw]

I've seen it written on another thread that if I "buy" something then I "own" that something. This statement may be true by definition, perhaps even a tautology, but what is less clear in the case of books is exactly what you have purchased. What did you buy? What do you own?

If you buy a paper book you buy, in effect, a lump of paper with ink spilled over it. That lump of paper is now yours to do with as you want - or so you may think, but that's not entirely true, more below. If your dog chews it up, tough luck, it's gone and if you want it again you'll have to buy another (your insurance may not cover acts of dog (thank you to The Simpsons)).

But here's the kicker: even your paper book comes with a whole lot of rules you didn't explicitly sign up for. The ink spilled on your lump of paper represents some intellectual property: the novel (or whatever, trying to use a term that distinguishes this abstract thing from the lump of paper that is the book). Many (most?) countries have copyright laws and are party to international agreements. I don't, usually, have the right to photocopy a book (duplicate the novel) just because I think my dog may eat the original.

Similar things happen with a lot of things you "buy". You have purchased the physical object but various patent and trademark laws applicable in your country do truly limit what you are permitted to do with what you have purchased. What makes these laws a bit less apparent to your normal person-on-the-street, is that their applicability is rather specialised. To photocopy a book is often not easy and certainly not cheap and the result is generally poor. To set-up to manufacture some patented widget is hugely expensive so patent law is not (or has not been) particularly interesting to the people who buy the widgets.

In case you need it: I remind you that copyright and patent laws were introduced for a reason. These laws are intended to encourage enterprise. By protecting the intellectual property rights of people that invent things (be they widgets or stories) you allow them to make money from their endeavours and thereby encourage people to be inventive. (Please, lets not get into if/whether/how this applies to computer software - that is another, really smelly, kettle of fish.)

So, back to your lump of paper, the book you purchased. Besides the possibly obvious restriction of not being permitted to photocopy it, there are other "rights" associated with intellectual property of which the book is one representation. Another right you will not have is the right to produce a play or movie from the work. You are not permitted to translate it into another language. And more. And many of these rights pertain to some less than perfectly defined "part" of the work. If, however, you are a publisher, you will have signed an agreement with the author or copyright owner of the intellectual property that gives you specific rights to do specific things with that specific property. As a publisher you will understand that you have purchased rights, licence, and not the intellectual property itself - this distinction is (or has been) less obvious to your average reader, but - up to now - it has been less important that they do understand.


Enter the computer. Now that computers (or some variation on the theme) are in the hands of millions, and so now we have millions of people that can set-up to manufacture products based on other people's intellectual property. They can do it quickly and at almost no cost - and often with little thought or understanding: how often have friends sent you huge emails of photos, many of which may well be copyrighted, or links to YouTube videos of the same. Now everyone of us can easily publish books, music, images, videos, blue-prints and more. No longer is intellectual property inherently protected by the difficulty and cost of manufacture. No longer are copyright and patent law the province of the strange fraternity of IP lawyers. The world has changed.


Enter DRM. In its most innocent form, Digital Rights Management is nothing more than an attempt to reinstate the protections that existed before computers; to once again make it sufficiently difficult to duplicate intellectual property so that it is easier and less effort for most people to purchase legitimate copies. I am not going to try and discuss less innocent implementations of DRM, that is not the purpose of this essay.

I think that many people would agree that the objectives (if not the results) of (innocent) DRM are fair enough. I suspect that most of us understand that many people will not buy access to books and music if they can get it for free. Of course the equation is not a simple "100 people downloaded this for free therefore those same 100 people would have purchased had it not been free", but there is almost certainly some proportion of lost sales in there somewhere. Conversely, there may be some validity in the argument that freely available copies can effect sales in a positive way: would Microsoft have gained such a monopoly if the earlier versions of their software had not been so easy to copy? How do all those effects coalesce? So far I've read only anecdotal reports either way, so currently it seems to be anyone's guess ... although harking back to the Microsoft example, and assuming they have tried to limit copying for good financial reasons, it seems likely that popular works, at least, may feel detrimental effects from illegitimate copying.

Is there a way of implementing DRM to have the desired effect without the apparently unfair consequences of many current implementations? Well, smarter people than I have worked (and are working) on this and so far it doesn't look good. But here are some thoughts to consider.

When you purchased your last paper book, you did not purchase a life-time right to read that novel (or whatever). You purchased a lump of paper with ink on it, along with many legal limitations on what you can do with it. If the dog eats it, or when you wear it out, you must purchase another copy. So ask yourself: When I purchase an ebook, do I have any right to expect a life-time right to read the novel regardless of events?

If your answer was "Yes" then I think you should be prepared to pay a premium, because that is not what you used to purchase when you bought a paper book.

If your answer was "No" then you may care to reconsider your opinions on whether certain DRM situations are that unfair after all. Consider that for some period of time you may actually be protected in ways you never were with a paper book (theft, acts-of-dog, breakage). A price of $15 for the guaranteed loan of a well-produced book for some period of time may not really be such a bad deal (especially when we remember that some portion of this goes to the author that we would dearly like to encourage to write more). What I would like to see is reputable sellers to make certain time guarantees as part of their licensing - so that you know more precisely what you are purchasing.

I've read here that many people love their ebooks over paper books because of their portability, the ability to carry a virtual library with them wherever they go. Perhaps DRM should concentrate on this aspect and effectively make the purchase price a sort of "stocking fee" for which they agree to carry that book for you for 5 years ... or whatever. I'm not really suggesting that they should limit the maximum time, only that they should guarantee some minimum if they really expect you to pay such prices for ebooks. It makes you wonder whether they could consider offering discounted books with lower guarantees. Such discounts could not be large, the biggest cost is in the initial production, but it still seems like a possibility.


Back when you purchased a paper book you had a physical, tangible, object that you owned. It was very reassuring and quality products did indeed have excellent lasting properties - not easily damaged to the extent of being unreadable. A paper book was a fairly easy thing to understand, at least, as far as most people needed to understand it. No one really expected to be able to just walk into any book-shop and pick up another copy because they left their other one at home.

But now you are purchasing an ebook and suddenly all those things that seemed irrelevant before: the ability to have multiple copies; intellectual property rights; the need for backup copies; the desire to read from multiple devices, have come to the fore. Whether you like it or not, you are now in a position to become a manufacturer, a publisher, and that has imposed on you the need to understand some of what is involved.

So what did you buy? The hope is that you got much the same as before: a representation of a novel (or similar intellectual property) with certain limitations. However it is necessarily true that your "digital rights" are potentially complex and it may well prove that some specific instances of DRM are potentially unfair (read your agreements) - but exactly how unfair has to be weighed against what rights you actually had before and what benefits you are gaining now. Remember that DRM is not being forced on you, you can - for now at least - still go out and buy a paper book if you don't like what is being offered online.


This essay is not intended to specifically support one form of DRM or another, or even DRM in general. I got my reader mostly to read classics that are readily available without DRM, and I am very curious to see how those pioneers trying DRM-free publication work out. What I hope the essay does is provide a bit more balanced perspective than I have seen so far on other threads. If you don't like DRM the solution is to not purchase books that contain it. To strip DRM (without the actual and specific justification of site shutdown) is to admit to being a person that signs an agreement with the full intention of breaking it - and that's hardly a reputation I'd like to acquire.

[edembowski]

Originally Posted by gmw

... To strip DRM (without the actual and specific justification of site shutdown) is to admit to being a person that signs an agreement with the full intention of breaking it - and that's hardly a reputation I'd like to acquire.

OK, I was mostly with you until this point. That is absolutely not the case. Stripping DRM not only is not against the law (it doesn't even violate the DMCA) at no point does it break any agreement I've signed digitally or otherwise.

When considering the legality of removing DRM, you need to look at the law. The DMCA is the primary legal tool for protecting digital content, but it does have specific clauses for circumvention for the purpose of interoperability. I would argue that decryption to use the content on an alternate platform is covered, but the fact is that this is not tested. There is no case law regarding individuals who have circumvented DRM for their legally purchased content. I'm not talking about file sharing, that's a different ball game. This is just the decryption part.

Regarding the authors of the tools used to circumvent DRM, there has been only one case that I know of that was brought to trial (United States v. ElcomSoft and Sklyarov) and Sklyarov won the case. Although Dimitry Sklyarov wrote an application for ElcomSoft to remove DRM from legally purchased PDFs, a jury found that there were no violations of the DMCA involved. One part of how the application worked is that it would not decrypt content that was not legally purchased. It used the same decryption keys that the reader application used. This is similar to the tools currently available for eBook decryption. Until there is more case law around this issue it will not be sufficiently proven. I do not believe that content providers are willing to bring suit against individuals who decrypt what they have purchased, it would be a horrible PR nightmare and a very risky legal battle.

Aside from that, I think you do raise several good points. If I buy a book and leave it in my house when it's on fire, then I've lost that book. It doesn't matter that it's an eBook or a paper book. The publisher or reseller is not required to keep a copy for me forever, although many eBook resellers do offer to make it available for as long as they have that service. That's a problem that doesn't have anything to do with DRM, it's all on you. I can make
backups of my electronic media with or without leaving drm in place, just as I can make backups of my print media using a photo copier or a scanner. Publishers may not like that, but there is no law against it.

- Ed

[gmw]

Originally Posted by edembowski

OK, I was mostly with you until this point. That is absolutely not the case. Stripping DRM not only is not against the law (it doesn't even violate the DMCA) at no point does it break any agreement I've signed digitally or otherwise.

I was not speaking about the law, I was speaking about an agreement. Most sites selling DRM ebooks have terms-of-use agreement that you are asked to read and accept - and at least some of of those agreements are explicit about the removal of DRM. Okay so I have not signed the agreement, does that make breaking it any better on my reputation? Am I not as good as my word? I like to think so, but apparently not everyone holds to the same standard.

[rkomar]

Paper books will last at least fifty years, as long as I'm willing to not abuse them. Generally, if they don't last that long, it's my fault. With e-books, there's another party involved in keeping them accessible for long periods of time, and it's not in their economic interest to hold up their end of the bargain. Any book you bought can be re-read and is competition for your reading time. It costs them money to keep your book accessible to you on new devices, and at some point, it will make business sense to cut their losses and not allow that book to be transferred to a new device. The question is, when does that point occur? Well before fifty years, I would wager. And once you can't transfer it, it will only last as long as your current e-reader (i.e. five years if you're really lucky). Of course, there will be bankruptcies, changes of publishing ownership, DRM and book format changes,... to push forward the time you won't be able to transfer the book.

In that way, DRM makes the lifetime of your e-books much shorter than that of your paper books (just ask people who bought DRM'ed books ten years ago). And that is why I don't want to pay the same price for the two types of books. I value a book's longevity.

[rogue_librarian]

Originally Posted by gmw

I've seen it written on another thread that if I "buy" something then I "own" that something. This statement may be true by definition, perhaps even a tautology, but what is less clear in the case of books is exactly what you have purchased. What did you buy? What do you own?

That is exactly the central question, and right off the bat, one that hasn't been answered with any sufficient degree of clarity, at least over here (read: EU). Regardless of whether it's a "book" or "software", however, consumers in many jurisdictions still have certain inalienable rights, all the one-click sign-your-soul-away shrink-wrap "contract" substitutes notwithstanding (our courts don't look too kindly on those).

If you buy a paper book you buy, in effect, a lump of paper with ink spilled over it. That lump of paper is now yours to do with as you want - or so you may think, but that's not entirely true, more below.

It's almost true. The only boundaries that affect consumers are copyright law.

even your paper book comes with a whole lot of rules you didn't explicitly sign up for.

More or less. You can find those in the Copyright Act or your jurisdictions equivalent.

I don't, usually, have the right to photocopy a book (duplicate the novel) just because I think my dog may eat the original.

It depends. In my jurisdiction this is true for the whole book (unless it's out of print), but not for (even substantial) parts of it. Dog ate the last chapter? By all means, make a copy for your own personal and private use.

Similar things happen with a lot of things you "buy".

Not really. Neither patent nor trademark laws affect my rights as a buyer and consumer. The prohibition to re-engineer and sell clones etc. is really the least of my concerns.

I remind you that copyright and patent laws were introduced for a reason. These laws are intended to encourage enterprise.

No kidding. That would be worth a separate essay, but do you think they still serve that purpose? Does anyone really think that creators of copyrighted works would be less creative if copyright expired, say, 10 years after their death instead of 70? Or protection, much like with patents would be limited to a few years, say 25, renewable once?

Another right you will not have is the right to produce a play or movie from the work. You are not permitted to translate it into another language. And more.

Actually you do, you just mustn't publish or make publically available such derivative works. Even so, clearly a copyright restriction, not likely to affect your average consumer and reader.

how often have friends sent you huge emails of photos, many of which may well be copyrighted, or links to YouTube videos of the same.

Nothing wrong with that in my book (and, do I need to say it, jurisdiction).

You purchased a lump of paper with ink on it, along with many legal limitations on what you can do with it.

Not as many as you like to think. They're neatly outlined in the Copyright Act.

When I purchase an ebook, do I have any right to expect a life-time right to read the novel regardless of events?

Pretty much, yes. If we classify ebooks as "software" you have a right to use it indefinitely (in addition to a few other rights).

Perhaps DRM should concentrate on this aspect and effectively make the purchase price a sort of "stocking fee" for which they agree to carry that book for you for 5 years ... or whatever.

No, thanks. I take care of my own data protection and backup needs.

Whether you like it or not, you are now in a position to become a manufacturer, a publisher, and that has imposed on you the need to understand some of what is involved.

Unless you make those works publically available you are not a publisher. Merely making a backup copy, or device-shifting your original does not count.

So what did you buy?

I am afraid the courts are still out on that one. Germany does apply its book-pricing cartel on ebooks as well, while the European Union refuses to treat them as books (potentially lower sales tax than software, you see). Early days yet.

[wallcraft]

Originally Posted by gmw

I was not speaking about the law, I was speaking about an agreement. Most sites selling DRM ebooks have terms-of-use agreement that you are asked to read and accept - and at least some of of those agreements are explicit about the removal of DRM. Okay so I have not signed the agreement, does that make breaking it any better on my reputation? Am I not as good as my word? I like to think so, but apparently not everyone holds to the same standard.

I buy from lots of ebook stores, and I don't ever recall being asked to agree to a terms of use agreement before buying ebooks. No ebook store does this for every single purchase (they don't want to give you the chance to cancel the sale). Are you saying that they do this when I sign up for an account at the ebook store? I don't remember ever doing so, but I probably would agree because most such agreements are not worth the time it takes to read them. Corporations will put things in there they know are not legally enforceable just because they can.

Where, for example, would I find the terms of service for Kindle ebooks (not Kindle devices or apps)?

[gmw]

Originally Posted by rogue_librarian

Unless you make those works publically available you are not a publisher. Merely making a backup copy, or device-shifting your original does not count.

Surely you are not denying that computers make it possible for you to disseminate material to the the public? It is that possibility that DRM tries to protect against (it's success is obviously debatable). If we cannot trust people not to strip DRM when they agree not to, how are we to trust them not to distribute to the public even if they say they wont?

Originally Posted by rogue_librarian

I am afraid the courts are still out on that one. Germany does apply its book-pricing cartel on ebooks as well, while the European Union refuses to treat them as books (potentially lower sales tax than software, you see). Early days yet.

I agree, the law still has a long way to got. But I do think that people need to better understand the real differences (or lack) between paper books and ebooks.

As to your question of whether patent and copyright law still serve their purpose. I'd say that patent law still achieves it in the realm of real (physical device) manufacturing, but I'd say it's been incorrectly applied in the case of software (in some jurisdictions). Copyright is much harder to guess. I'd have to say, yes, at the moment it is still playing its part. But the ever increasing spread of the Internet makes me wonder how authors of the future may earn their way. What are we saying, author's are going to have to ask for donations? Maybe a $ per question they answer to private emails? Give me a better option.

[rogue_librarian]

Originally Posted by gmw

Surely you are not denying that computers make it possible for you to disseminate material to the the public?

Of course not, they do. But unless you actually do publish something you're not a publisher, and not subject to any applying copyright provisions. Just like owning a printing press doesn't make you a publisher per se.

If we cannot trust people not to strip DRM when they agree not to, how are we to trust them not to distribute to the public even if they say they wont?

Trust? Our legal system really doesn't rely on that. If they do publish or disseminate content that way they're usually in violation of copyright law, and subject to a civil (or possibly criminal, if done for profit) suit, and that's that. It's always been that way.

But I do think that people need to better understand the real differences (or lack) between paper books and ebooks.

I see a lot of cherry-picking on behalf of the publishers. "It's like a book!" Obviously you can't read it on two devices at the same time, or get a replacement when it's damaged, or do anything else that a regular book wouldn't allow you to. You must pay full price, too (cartell pricing has only recently arrived in the US, we've had it for ages in Europe). "It's not a book at all!" You're only licensed to read it, of course you mustn't re-sell it, lend it, give it away... or do anything else you could do with a book, but not a file.

I'd say that patent law still achieves it in the realm of real (physical device) manufacturing, but I'd say it's been incorrectly applied in the case of software (in some jurisdictions).

No argument here, although there are some fringe cases (bio patents, genes and such) that have me worried. The problem lies in the application, no thorough checks for prior art are made, etc.

I'd have to say, yes, at the moment it is still playing its part.

I'm not so sure. It's playing it's part, i.e. it's an incentive to creators, but the balance between creators' rights and the general public is way off. The way it currently works it's basically a money-making license for big corporations.

But the ever increasing spread of the Internet makes me wonder how authors of the future may earn their way.

That is a very good and valid question. Unfortunately I don't have an anser to it, either. I am not anti-copyright, I just don't think that the ever-increasing terms of protection really serve the authors. Currently copyright protection is life + 70 years before the work reverts to the public domain: how does that serve the original creator? If it were life + 10 years, or 30 years after creation, or something inbetween, wouldn't that be just as good and serve the same purpose, namely to provide an incentive to the creator, possibly (hopefully) allowing him to live off his work?

[gmw]

Originally Posted by rkomar

Paper books will last at least fifty years, as long as I'm willing to not abuse them. Generally, if they don't last that long, it's my fault. With e-books, there's another party involved in keeping them accessible for long periods of time, and it's not in their economic interest to hold up their end of the bargain. ...

Indeed we have some paper books here that will definitely last a long time - because we care for them and because they are not read that often. Some others get read very often and will need replacing - some, at a rough guess, 20 years after their purchase (obviously it varies with the quality of the book).

I'd like to see licence/DRM arrangements take serious consideration of the anticipated life-times of ebooks. It is one of the key comparison points against paper books and while they continue to sell those they should address that aspect.

Originally Posted by rkomar

In that way, DRM makes the lifetime of your e-books much shorter than that of your paper books (just ask people who bought DRM'ed books ten years ago). And that is why I don't want to pay the same price for the two types of books. I value a book's longevity.

That variation of life-time is one of the things you need to weigh in when considering whether to purchase ebooks or paper books. I too value a book's longevity and so I choose a paper book for anything I really want to keep and re-read (among other reasons). ebooks offer different attributes to paper books and you have to take the different attributes into consideration when buying.

[gmw]

Originally Posted by wallcraft

[...] Corporations will put things in there they know are not legally enforceable just because they can.

Where, for example, would I find the terms of service for Kindle ebooks (not Kindle devices or apps)?

A quick search on Amazon gave me this link, I hope it works for you.

One quote from it: "In addition, you may not bypass, modify, defeat, or circumvent security features that protect the Digital Content."

Is it legally enforceable? Ask someone else. Is it an agreement that you should honour? Ask yourself. Do you regularly make even verbal agreements that you intend, even as you make them, to break? Is there not some obvious way to still have what you want (the novel) and not make an agreement you intend to break? (eg: buy the paper book)

[Toxaris]

Regarding the 'terms of service' or EULA (in case of software). Over here you can ignore that completely. The reason is simple. No company can enforce rules that are not in correspondence with the law.
So, if the law permits me to copy a book for personal use, I am allowed to do it. This regardless of any 'terms of service' or agreements I did or didn't agree to.

As long as the law doesn't prevent me to strip DRM, I will strip it. However, it is my choice not to distribute the files. However, if for example my father would love to read the book, he gets a copy. I see that in the same fashion as lending him a book. He too will not distribute it. I see that as my right until the law says otherwise.

On a side-note, if I see how long it take laws to anticipate to new circumstances, it will be a long time before this will happen.

[gmw]

Originally Posted by rogue_librarian

Of course not, they do. But unless you actually do publish something you're not a publisher, and not subject to any applying copyright provisions. Just like owning a printing press doesn't make you a publisher per se. ...

I can only repeat myself. Computers give you the opportunity, DRM attempts to make it more difficult. That explains DRM. There are even potential legal arguments in favour of using DRM: that an intellectual property owner is legally obliged to take steps to try and protect their property if they ever intend to ask for legal remedy (disclaimer: whether DRM itself can really be considered a requirement I have not the expertise to say, but I can envisage legal advice being given to that effect - witness the useless footers on corporate emails).

I am not saying that every person that buys a book is going to violate the trust of whatever agreement they make. But I am saying that some have blatantly said on these forums that they strip DRM in direct contradiction to the agreements they were aware of at the time they made them. So much for trust, so becomes obvious the reasons for trying to find effective DRM. I find such behaviour ... anomalous; inconsistent with my sense of honour and what is right. No one made them make such agreements in contradiction of their own beliefs, and it's not as if they had no other choice. This is not a A Man for All Seasons sort of situation, they are in no sense doing anything morally right in choosing to break their agreement, the morally right behaviour is to not make that agreement in the first place.

Originally Posted by rogue_librarian

That is a very good and valid question. Unfortunately I don't have an anser to it, either. I am not anti-copyright, I just don't think that the ever-increasing terms of protection really serve the authors. Currently copyright protection is life + 70 years before the work reverts to the public domain: how does that serve the original creator? If it were life + 10 years, or 30 years after creation, or something inbetween, wouldn't that be just as good and serve the same purpose, namely to provide an incentive to the creator, possibly (hopefully) allowing him to live off his work?

Simply playing with the numbers doesn't change the difficulty of protecting copyright in the computer-age. As I tried to explain in my OP I was not really trying to defend DRM, I was more trying to explain its place in the scheme of things. It currently has a place largely because no one has come up with any useful alternatives that offers the same sorts of encouragement to enterprise. Will it still stand in 50 years? Who knows? But DRM bashing without understanding the reasons for it and what it is trying to achieve don't help very much.

[gmw]

Originally Posted by Toxaris

... However, if for example my father would love to read the book, he gets a copy. I see that in the same fashion as lending him a book. ...

That is an interesting problem with regard to ebooks vs paper books, OTOH you certainly could loan him your reader (or perhaps you have multiple authorised devices as permited by some sellers) and still keep faith with your agreement.

As for your comments about adhering to what you voluntarily agreed to vs what you want being letter-of-the-still-forming-law legal ... well I think I've already made my views clear on that topic.

[mr ploppy]

Originally Posted by gmw

A quick search on Amazon gave me this link, I hope it works for you.

One quote from it: "In addition, you may not bypass, modify, defeat, or circumvent security features that protect the Digital Content."

Is it legally enforceable? Ask someone else. Is it an agreement that you should honour? Ask yourself. Do you regularly make even verbal agreements that you intend, even as you make them, to break? Is there not some obvious way to still have what you want (the novel) and not make an agreement you intend to break? (eg: buy the paper book)

Whether it is legally enforcable or not wouldn't really matter. Amazon has the right to refuse sale for any reason it wants, just like any other retail outlet. And at a guess, because of the way the Kindle works, they would be able to tell straight away if you removed their DRM restrictions.

[Worldwalker]

You are taking publishers' side that their making demands of their users is an agreement between them and those users.

Not everyone believes that a unilateral demand constitutes an agreement.