I'm regretting giving my husband a Kindle 3

[SteveEisenberg]

Originally Posted by Harmon

You don't own the library book - the library does.

No, OverDrive, or a corporate partner, owns the book. The library leases it.

OverDrive will lease it in EPub format, or Mobipocket format, or as an audiobook. The few libraries that lease in both EPub and Mobipocket have to pay more for that right than for EPub alone, and this probably results in more revenue going back to the author. (I say probably because it depends on how many copies total the library leases, and whether the books are almost always out, and on the lease rates.)

If someone could invent a rock-solid way to keep Kindle users from viewing EPub books, there would be more books sold and authors would make more money. Does this make it immoral to convert a book you would never buy under any circumstances, since the author is held harmless? I don't know, but legal or otherwise, it would not feel right for me to break the encryption.

[HarryT]

Originally Posted by Harmon

What "evidence" do you have that stripping DRM from personally owned files is a violation?

I base my view on the comments made by the judge in the "RealNetworks, Inc. v. DVD Copy Control Association, Inc." 641 F. Supp. 2d 913 (2009), case.

As you know, this was a case in which RealNetworks sold a program called "RealDVD" which permitted users to make backup copies of DVD, bypassing the content scrambling system (CSS) DRM mechanism of DVDs in order to do so. The DVD Copy Control Association (DVD CCA) and RealNetworks mutually sued one another over this. The ruling of the court was that RealDVD violated both the anti-circumvention and anti-trafficking provision of the DMCA and breached the CSS licensing agreement with DVD CCA.

The important point as far as we are concerned is that the judge stated that, even though making a backup copy of digital media is a permissible "fair use" activity, it is a violation of the DMCA to circumvent a DRM mechanism in order to so, even if you legitimately own the media involved. ie, what you are permitted to do by fair use is not a "right" to the extent that you're permitted to violate the DMCA's anti-circumvention measures in order to exercise it.

And that is why I believe that removing DRM from eBooks, even eBooks that you've perfectly legitimately bought, is a DMCA violation.

[GreenMonkey]

Originally Posted by HarryT

I base my view on the comments made by the judge in the "RealNetworks, Inc. v. DVD Copy Control Association, Inc." 641 F. Supp. 2d 913 (2009), case.

As you know, this was a case in which RealNetworks sold a program called "RealDVD" which permitted users to make backup copies of DVD, bypassing the content scrambling system (CSS) DRM mechanism of DVDs in order to do so. The DVD Copy Control Association (DVD CCA) and RealNetworks mutually sued one another over this. The ruling of the court was that RealDVD violated both the anti-circumvention and anti-trafficking provision of the DMCA and breached the CSS licensing agreement with DVD CCA.

The important point as far as we are concerned is that the judge stated that, even though making a backup copy of digital media is a permissible "fair use" activity, it is a violation of the DMCA to circumvent a DRM mechanism in order to so, even if you legitimately own the media involved. ie, what you are permitted to do by fair use is not a "right" to the extent that you're permitted to violate the DMCA's anti-circumvention measures in order to exercise it.

And that is why I believe that removing DRM from eBooks, even eBooks that you've perfectly legitimately bought, is a DMCA violation.

Yes. This is how it works right now. This is why there is no good, legal in the U.S. DVD-to-video file type program. Because if they attempt to sell one, it is crushed by legal challenges.

See the Electronic Frontier Foundation's latest DMCA article:

http://www.eff.org/wp/unintended-con...ces-under-dmca

Here's a good breakdown of the Kaleidoscope and RealDVD cases as of late 2009.

http://www.cepro.com/article/underst...realdvd_cases/

# Products that enable copying a DVD for back-up purposes are legal under the "fair use doctrine."

Wrong, at least for now. Real (and others) rely on the so-called fair use doctrine (section 107) of copyright law (title 17, U.S. Code) that grants the "fair use" of copyrighted work. Surely making a back-up copy is fair use? Judge Patel shot down this argument of Real's, reiterating that the DMCA prohibits the "circumvention of access controls in ways that facilitate copyright infringement and for trafficking in circumvention devices that facilitate copyright infringement." As ruled, RealDVD does just that.

# It is illegal for consumers to make back-up copies of their DVDs
Maybe not. The Real ruling applies only to manufacturers of DVD-ripping products, not necessarily to those who use such devices. "[T]he court appreciates Real’s argument that a consumer has a right to make a backup copy of a DVD for their own personal use. Whether this is a 'fair use' copy is not at issue, because while the DMCA provides for a limited 'fair use' exception for certain end users of copyrighted works, the exception does not apply to manufacturers or traffickers of the devices."

Therefore, it seems, consumers are encouraged to purchase and use non-licensed DVD-ripping products from offshore companies like Slysoft that are untouchable.

UPDATE 2:06 pm 17 Fred von Lohmann, senior staff attorney at the Electronic Frontier Foundation, clarifies some of the murky waters of consumer liability for DVD ripping:

Judge Patel appears to say that fair use is never a defense to circumventing an access control, but that it can be a defense where a copy control is concerned (the DMCA treats "access control" differently from "copy control"). So it's not clear what she means on page 39, where you got the quote from. Because there is no way to make and play a back-up copy of a DVD without circumventing the "access control" of CSS. So I'm left a bit puzzled by the discussion. ...

Here is what we know: the MPAA and the Copyright Office take the position that ripping a DVD using the usual decryptor tools (Handbrake, etc) always violates the DMCA. Whether that would hold up in court in every case is hard to know. And whether other DVD copying tools might be treated differently (e.g., screen capture utilities like SnapZ) is also hard to know, because it's not clear those tools do any "circumventing."

Hopefully, we'll see fair use rights trump the DMCA in the courts eventually. But it hasn't happened yet.

[Harmon]

Originally Posted by SteveEisenberg

No, OverDrive, or a corporate partner, owns the book. The library leases it.

OverDrive will lease it in EPub format, or Mobipocket format, or as an audiobook. The few libraries that lease in both EPub and Mobipocket have to pay more for that right than for EPub alone, and this probably results in more revenue going back to the author. (I say probably because it depends on how many copies total the library leases, and whether the books are almost always out, and on the lease rates.)

Thanks for the correction. I assumed that the library bought the ebooks, just as you or I would. But it doesn't change the point I was making, which is that the borrower does not own the book, someone else does, and that might restrict the rights of the borrower in a way that it would not if he were the owner.

If someone could invent a rock-solid way to keep Kindle users from viewing EPub books, there would be more books sold and authors would make more money.

Why do you think this?

[wvcherrybomb]

I see this thread is still going back and forth.

It's interesting that people who don't even live in the US are so worried about what it's citizens do. It's like when people with no kids think they're experts on raising children.

I have an original idea! How about everyone just do what they want to do and quit worrying about what everyone else is doing or not doing?

You know, like agree to disagree ...

[HarryT]

Originally Posted by Harmon

Why do you think this?

It would mean, for example, that someone who owned both a Kindle and an ePub device (as I do) would have to purchase two copies of a book if they wished to be able to read it on both devices. Or, if someone switched from a Kindle to an ePub reader, or vice versa, they'd need to repurchase their books.

[abookreader]

Originally Posted by Harmon View Post
Why do you think this?

Well right now Kindle owners have the following choices in regards to Overdrive ePub books.

1. Don't read the book/Read the Library Paper Copy of the book
2. Buy some sort of ePub device or use the computer to read it
3. Alter the ePub file to put it on the Kindle
4. Go Buy the Kindle copy themselves

So if they don't want to do 1 & 2 and 3 is no longer feasible, I guess sales would increase.

[screwballl]

Federal law: The fair use exemption of copyright law (within the US) states that you are allowed to make a backup copy for private and personal use. It doesn't matter if it is a paper book that you put on a copier and make copies of all the pages or digital file.

Civil law: DMCA states you cannot bypass, defeat or others get around copyright protection schemes.

That is part of the problem right now, we have conflicting laws, federal law permits it, civil law does not. So you are legally allowed to do it, but if someone finds out you are, then they can sue you in civil courts.

That is the same as you are allowed to walk across a neighbors lawn by federal and state land use laws, but if they choose, the neighbor can sue in civil court for trespassing.

[jamthecat]

Originally Posted by kindlekitten

you've gotten some good instructions already, keep at it and you will be able to get those books! there are also thousands of free books here at the Mobile Read Library. also check at the top section of this page, there is a link for free or reduced priced books from Amazon.

off topic... are you a Canadian or have a Newfie?

Even farther off topic, I love the quote you have on your posts -- "Well behaved women rarely make history!" All people should be polite, but no one should be well-behaved. It just makes for sheep.

[Harmon]

Originally Posted by HarryT

I base my view on the comments made by the judge in the "RealNetworks, Inc. v. DVD Copy Control Association, Inc." 641 F. Supp. 2d 913 (2009), case.

As you know, this was a case in which RealNetworks sold a program called "RealDVD" which permitted users to make backup copies of DVD, bypassing the content scrambling system (CSS) DRM mechanism of DVDs in order to do so. The DVD Copy Control Association (DVD CCA) and RealNetworks mutually sued one another over this. The ruling of the court was that RealDVD violated both the anti-circumvention and anti-trafficking provision of the DMCA and breached the CSS licensing agreement with DVD CCA.

The important point as far as we are concerned is that the judge stated that, even though making a backup copy of digital media is a permissible "fair use" activity, it is a violation of the DMCA to circumvent a DRM mechanism in order to so, even if you legitimately own the media involved. ie, what you are permitted to do by fair use is not a "right" to the extent that you're permitted to violate the DMCA's anti-circumvention measures in order to exercise it.

Okay, now let me try and explain how you are misreading this case and misunderstanding the comments made by the judge.

This case involved a lawsuit brought by Realnetworks (which I will call "Real" because that's what the opinion does) as a kind of pre-emptive strike against a number of parties who sell encrypted DVDs. What Real was trying to do was to get the Court to say that a software program it made did not violate the DMCA. Real did not want to go out and sell the product, only to have to pay over its profits later on when it got sued.

If you look at the parts of the opinion numbered 86 and 87, you will see what the parties were arguing about in terms of the DMCA, and what portion of the DMCA the judge was interpreting. They were sections 1201(a)(2) and 1201(b)(1). These two subsections involve "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof".

So the first point you have to understand is that anything that the judge wrote in the opinion must be understood in relationship to the operation of those two sections, NOT section 1201(a)(1).

Now, what did the judge actually decide? She decided that Real was in violation of those two sections. Because Real was producing products which the DMCA says cannot be manufactured or offered for sale. You will see this at the end of parts 97 and 101.

At that point, she could have just stopped. She's given her decision. But one of the reasons judges write opinions is to explain why the loser's arguments didn't work. So the judge keeps going in order to knock down Real's arguments. Remember, she's doing this in the context of (a)(2) and (b)(1), not (a)(1).

So now, we get to Section D of the opinion, where the judge is addressing one of Real's arguments. In part 112, the judge lumps together some of the arguments and calls them "fair use" arguments. Basically, Real is arguing that its product is okay because consumers can use it to exercise their fair use rights.

The judge's answer to that is in part 115, where she says "Real is correct that Congress did not intend to regulate the conduct of individual users with authorized access to copyrighted works, since their liability was controlled by the existing law of copyright infringement and fair use. In this sense, there is a "user exemption" implicitly recognized in the DMCA for the fair use of copyrighted works." (my underlining.)

(Remember when I told you in another post that the DCMA does not need an exemption for someone who owns a copy of an ebook because the law doesn't prohibit that user from stripping DRM? This is what the judge is saying.)

But now, let us move smartly along to part 116. This is a critical paragraph for our purposes, because the judge points out that Real cannot rely on "fair use" because fair use doesn't apply to "traffickers" like Real, and so she doesn't need to decide anything about "fair use" anyway in order to decide this case.

So anything she says about "fair use" is what we lawyers call "dicta." That means "an interesting observation by a judge, but with no binding effect on anyone." She could have stopped then, but she goes on to point out out at the end of part 116, quoting another court, that the "technologically unsophisticated person" is screwed by the DCMA - the negative implication being that someone who knows what they are doing is NOT so screwed. And to drive the point home, she points out in part 118 that another court has said that "[W]hile it is not unlawful to circumvent for the purpose of engaging in fair use, it is unlawful to traffic in tools that allow fair use circumvention."

So now, to what you said about what the judge said:

The important point as far as we are concerned is that the judge stated that, even though making a backup copy of digital media is a permissible "fair use" activity, it is a violation of the DMCA to circumvent a DRM mechanism in order to so, even if you legitimately own the media involved. ie, what you are permitted to do by fair use is not a "right" to the extent that you're permitted to violate the DMCA's anti-circumvention measures in order to exercise it.

That is NOT what the judge said. What she said was if you traffic in DRM mechanisms, you can't rely on "fair use" by a customer/end consumer as a defense. That is, Real cannot use the "fair use" defense. Beyond that, although she didn't have to, the judge says that it looks to her like the consumer actually can use that defense.

Now, do you see why your reliance on this case is not proper? From a legal point of view, it does not have anything to do with the section of the DMCA you are pointing to in order to support your position. But to the extent that the judge says anything that MIGHT have something to do with that section, what she says is that the law is NOT aimed at the consumer - i.e., the owner of the DVD (or in our case, the ebook.)

Your mistake is understandable, because your reading of section 1201(a)(1), on its face, seems reasonable. But what non-lawyers do not understand is that a particular section has to be read in the context of the entire law, and that sometimes what appears to be the "plain meaning" of a section is not the real meaning when read in context. And that is what is going on here.

[Harmon]

Originally Posted by HarryT

It would mean, for example, that someone who owned both a Kindle and an ePub device (as I do) would have to purchase two copies of a book if they wished to be able to read it on both devices. Or, if someone switched from a Kindle to an ePub reader, or vice versa, they'd need to repurchase their books.

Well, I guess see the point, but I don't see how ithas any validity given that there's always calibre. By "rock solid" I suppose it would have to mean that Kindle could detect files that had previously been epubs even if they were now azw...

[Harmon]

Originally Posted by screwballl

Federal law: The fair use exemption of copyright law (within the US) states that you are allowed to make a backup copy for private and personal use. It doesn't matter if it is a paper book that you put on a copier and make copies of all the pages or digital file.

Civil law: DMCA states you cannot bypass, defeat or others get around copyright protection schemes.

That is part of the problem right now, we have conflicting laws, federal law permits it, civil law does not. So you are legally allowed to do it, but if someone finds out you are, then they can sue you in civil courts.

That is the same as you are allowed to walk across a neighbors lawn by federal and state land use laws, but if they choose, the neighbor can sue in civil court for trespassing.

I like your analogy, but the distinction between "federal law" and "civil law" exists only in the sense that some federal law is criminal rather than civil.

And in any event, you are overstating what the DMCA says.

But I'm going to steal...um, "fair use" your analogy myself when I get a chance.

[kindlekitten]

Originally Posted by jamthecat

Even farther off topic, I love the quote you have on your posts -- "Well behaved women rarely make history!" All people should be polite, but no one should be well-behaved. It just makes for sheep.

;o)

[screwballl]

Originally Posted by Harmon

Okay, now let me try and explain how you are misreading this case and misunderstanding the comments made by the judge.

This case involved a lawsuit brought by Realnetworks...

CLIPPED

Good stuff.

Essentially, the judge said it is fine for end users to use the software for "fair use", but it is not legal for the companies to make the software to begin with if it includes methods of bypassing the protection aka DRM. Another key point: this only affects companies within the US. For companies that create software of this type outside of the US that do not have these laws, then the users even within the US can use them for "fair use", and the company is not subject to US law other than trying to prevent the company in question from distributing it within the US which would be nearly impossible on the internet.

[GA Russell]

Bravo! I think we should all chip in and pay Harmon's legal fees!