[Xenophon]

Originally Posted by stonetools

One mo' time...

Some arguments against DRM that I think don't work:

1. "I bought this ebook, I own it, I should be able to do what I want
with it". Er, no you didn't. I know making this observation is about as
welcome as a turd in a swimming pool, but according to the law, when
you "bought" an ebook, you did not receive an absolute transfer of
title in an object in exchange of money: rather, you bought a license
to access a copy of the digital file.Now you can argue that the
license should not incluide DRM. You can and should argue that the
price for the license should be much lower than the sale price of a
pbook. What yo cannot do is argue into a court of law and insist that
DRM is an unlawful restriction of your ownership rights. Well you can ,
but you will likely be disappointed.

Actually, there's a substantial legal question there. Plenty of court cases agree that not all license terms are enforceable. Especially when the language surrounding the transaction strongly indicates "sale." The general sense of the case law is that calling it a sale makes it a sale, in spite of any license terms to the contrary.

Whether that case law applies to eBooks is a question no one can answer (in the US, at least) because it hasn't yet been ruled on in any court -- to the best of my knowledge. It's worth noting that the most closely related case law (on software purchases and the licensing thereof) is split, with differing outcomes in different US circuits.

So, overall, any confident statement strong than "no one really knows, yet" is guaranteed to be arguing in advance of the legal realities. This observation holds equally for my position (it's a sale, dammit!) and yours (it's a license, you fool!).

Aside: I Am Not A Lawyer, and this is not legal advice. Should you require legal advice on which you can place reliance, go hire yourself a real lawyer -- don't listen to some guy on the internet!

My writing here is based on a graduate seminar on IP issues for computer scientists, lectures therein from a wide variety of leading legal experts, and my layman's understanding (or possibly misunderstanding) of my certainly-flawed class notes. That's a long way from a legal opinion; it's also far better informed than average internet bloviation.

Originally Posted by stonetools

2."The music industry still exists, [...]

I have nothing useful to add on either side of this one.

Originally Posted by stonetools

3." The use of DRM treats the buyer of ebooks like a criminal". I'm
sorry but this is horse#### (to put it delicately).Storeowners have
every right to take precautions to protect their goods. When the goods
are valuable and easily stolen, they have a right to take even greater
precautions. Maybe there is a jewelry store somewhere that displays its most expensive products in open shelves, is noncholant about patrons handling their merchandise, and has an attitude of total trust to anyone who enters their stores. Most jewelry stores don't , and weunderstand why they don't.
We don't even have to consider jewelry stores. Think of the B&N store in downtown DC. To enter the store, I walk past a metal detecter and a security guard . The items in the store have RFID tags on the them, which alarm if I try to take the items out of the store without paying for them. Do I feel offended by all this? Do I clutch my pearls and moan that I am being treated like a potential criminal and I deserve the trust of the storeowner? No, and I don't know anyone who does.

You overlook here my earlier argument that these store-owners have hard data about and real-world experience of the costs and risks on which to base their policies. And they consider the necessary lack of trust to be a problem that leads to expenses they wish they could avoid, to more difficult relations with their customers, and to occasional (or even frequent!) lost sales. For that last, consider the frequency with which a customer walks away rather than waiting for store staff to find someone with the key to open the case where the iPods (or whatever) are kept.

By comparison, the BPH:

• Have fears (arguably reasonable; arguably unreasonable) about piracy and casual sharing
• Lack both hard data and experience about piracy and casual sharing
• Choose to ignore folks who provide them with the admittedly limited hard data and experience that is actually available. Like you've been doing in this thread.

Originally Posted by stonetools

THe attitude of the digerati appears to be that publishers and boooksellers take whatever precautions they liketo protect their goods against theft, but no right to take measures to prevent the theft of ebooks, unless such measures (A) work perfectly (B) never inconvenience the digerati. Not suprisingly, the powers that be in the book industry are mostly unconvinced.
Now what could convince the PTB? Some ideas:
A. Some big time author puts his book out there without DRM and it becomes a best seller without large scale casualsharing/piracy.

We've given you this one. For multiple authors, and multiple best-selling books. Admittedly, not the very-biggest-time of big-time authors. But folks who routinely hit the hardcover bestsellers list, and who make plenty of money for themselves and their publishers.

Originally Posted by stonetools

B. Lots of regular folk become incensed about DRM and stop buyiing books as a result. Right now, they're buying DRMED ebooks hand over fist, and seem OK with DRM.

Dunno about "lots of regular folk." But I do know about "lots of folk who purchase a LOT of books." You know, the kind of people who spend >$50/month (and often >$100/month) on books (including eBooks).

I fall in the >$100/month category. The spending breakdown goes like this: I very reluctantly purchase a DRMd ebook every other month, or so. I spend most of the rest -- call it $80/month up to $100/month -- on DRM-free ebooks. Finally, I very reluctantly purchase a paper-format book every other month, or so -- I'm completely out of shelf space, and have nowhere to add more, so I'm on a "one in, one out" budget for paper books.

Among my friends who read and purchase eBooks, the breakdown is somewhat less lopsided. Instead of running 90% DRM-free, with the remainder split between DRMd ebooks and paper, they run more like 80% DRM-free ebooks with the remainder split between DRMd ebooks and paper.

I recognize that the really-avid-reader crowd I describe represents a minority of sales of the latest "bestseller" (a.k.a. big fat airport novel). I suspect, but cannot prove, that we represent a large plurality of the sales of most everything else -- including the remainder of the bestseller lists.

Originally Posted by stonetools

C. Some major retail channel (maybe Apple once again?) goes non DRM. (Apple could afford to do so, but what's the business case for them to do so? Dunno).

Apple, Amazon, and others going DRM-free in the music world didn't convince you... The four small-to-medium-sized publishers we've listed didn't convince you... In spite of actual data showing that the effect of DRM-free bits on their businesses has been at worst a non-issue, and arguably a substantial boost.

Heck, the folks at Baen credit their ePublishing approach with fueling their steady and solid growth over the course of a decade in which publishing as a whole was shrinking. Yes -- they grew while the industry shrank. Hmmmm...

Originally Posted by stonetools

If you can think of some other ways, suggest them. The purist arguments (publishers ashould give up on DRM, because its somehow morally wrong or its against publishers' long term intersts in ways that that the publishers can't measure) aren't convincing.

On to 500!

And the BPH arguments that they have to have DRM or the sky will fall also fail to be convincing.

The available data are insufficient to settle the question. If the data sufficed to make the answer obvious, we wouldn't be having this discussion. However, all data presented to date shows that the problems DRM supposedly addresses are:

1. Not demonstrated by actual experience. See lack of data from BPH.
2. Contradicted by actual experience and real data. See actual data from Baen, O'Reilly, Wiley, National Academies Press.
3. Impossible to address via DRM (for large-scale piracy). See many academic papers.
4. Largely unaffected by DRM (for casual sharing). See results on sharing of paper books, ease of DRM-stripping, etc.

Meanwhile, the problems posed by DRM are:

1. Proven by experience -- added cost, customer confusion, increased need for customer support
2. Proven by experience -- loss of product when DRM servers shut down. See removal of a DRM provider from Fictionwise; Amazon's abandonment of PDF ebooks; end-of-life for Rocket/RCA ebook line, etc.
3. Proven by experience -- Device lockin may provide some benefit for hardware vendors, but provides absolutely no benefit for publishers (and maybe a detriment). And, of course, it's a problem for the customers (remember them?).

I repeat: The hard data are inadequate to give a conclusive answer. But that hard data is heavily weighted on one side. And it's not the pro-DRM side!

Xenophon