Why I Prefer Sony 505 Over Kindle 2

[HarryT]

Originally Posted by gwynevans

I'd expect that they'd only be able to display it after you've stripped the DRM protection of it. My understanding is that it's possible to do that with the majority of Kbooks, although not all, as some use an alternative form of DRM that's not been broken. I've no idea about the legality of such an action though.

It is very probably a crime under the DMCA for people in the United States to do so.

[Harmon]

Originally Posted by HarryT

It is very probably a crime under the DMCA for people in the United States to do so.

Nope, definitely not a crime. Nor civil liability, if all you do is strip DRM. Roughly speaking, where you get in trouble is if you distribute the stripped ebook for commercial advantage or financial gain (crime), or in violation of copyright (damages) or if you distribute anti-DRM programs, which I think follows the same pattern.

I've been poking around in the DMCA, and my sense of the matter is that the Act is not aimed at the individual reader who strips the DRM for purposes of reading a book he has paid for. I'm pretty sure that if you are competent enough to put together your own DRM stripping program, and use it entirely for your own personal use on your own computer or reader, you will not be liable for either criminal or civil penalties.

And having said that, I also think that if someone gives you or even sells you a program to strip the DRM, you still won't have a problem, although the person who gives or sells it to you could, particularly if it's a sale.

This interpretation is reinforced for me by the following statement in a Wikipedia article on the DMCA:

The arrest of Russian programmer Dmitry Sklyarov in 2001, for alleged infringement of the DMCA, was a highly publicized example of the law's use to prevent or penalize development of anti-DRM measures.[12] While working for Elcomsoft in Russia, he developed The Advanced eBook Processor, a software application allowing users to strip usage restriction information from restricted e-books, an activity legal in both Russia and the United States.[13] Paradoxically, under the DMCA, it is not legal in the United States to provide such a tool.

The problem with the DMCA, from our perspective as consumers, is that it makes us think that we can't do things that we really can, in no small part because we don't really know our rights, but we do know what the costs of defending those rights are.

If I run across a DRM stripping program that works on a mac, I won't have any concerns about using it to make any book I buy readable on my 505. As far as I can tell, there's nothing (yet) to legally prevent you from doing whatever you want to make your own ebook readable on your own computer.

[pilotbob]

Originally Posted by Harmon

Nope, definitely not a crime. Nor civil liability, if all you do is strip DRM.

Perhaps you should go and read the DMCA before you make such an incorrect statement.

BOb

[frabjous]

Originally Posted by pilotbob

Perhaps you should go and read the DMCA before you make such an incorrect statement.

He said he did.

I don't know either way, myself.

[RickyMaveety]

It is a crime under the DMCA which states:

"No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

Since stripping DRM is circumventing the DRM, it is definitely covered under the DMCA. No question about it.

Does that mean that anyone is going to actually prosecute an individual who strips DRM from a digital book for their own use? Highly unlikely.

[pilotbob]

Originally Posted by frabjous

He said he did.

I don't know either way, myself.

It is a bit of a gray law. But to say removing DRM is "definitely not a crime" under the DMCA is a bit suspect. Considering the whole point OF the DMCA is specifically to criminalize creating or using tools to circumvent DRM.

BOb

[Harmon]

Originally Posted by pilotbob

It is a bit of a gray law. But to say removing DRM is "definitely not a crime" under the DMCA is a bit suspect. Considering the whole point OF the DMCA is specifically to criminalize creating or using tools to circumvent DRM.

BOb

It's definitely not a crime. It's only a crime if you strip the DRM for commercial advantage or financial gain.

Here's the provision of the DMCA which says what constitutes a crime under the law:

‘‘§1204. Criminal offenses and penalties
‘‘(a) IN GENERAL.—Any person who violates section 1201 or
1202 willfully and for purposes of commercial advantage or private
financial gain—
‘‘(1) shall be fined not more than $500,000 or imprisoned
for not more than 5 years, or both, for the first offense; and
‘‘(2) shall be fined not more than $1,000,000 or imprisoned
for not more than 10 years, or both, for any subsequent offense.

Now, unless you've got some other provision of the DMCA under which someone can be convicted of a crime, it's not a crime.

What I think you are doing, and what most everyone seems to be doing, is confusing civil lawsuits with criminal prosecutions. So, the question is, if you strip your DRM for personal use, can you be sued? Assuming, of course, that anyone ever finds out about that.

The answer to that question is sure, you can be sued, but it appears to me that you would win the lawsuit. I'm not quite as certain about that as I am about the crime part, because the crime part is a slam dunk, while the part about being successfully sued is based on my reading of the entire statue and trying to figure out what is covered and what is not.

I'm a tax lawyer, not a copyright lawyer, but in reading the entire statue, it appears to me that it very carefully avoids addressing private users, even for civil lawsuits, if they are acting within the boundaries of "fair use," which of course includes reading your own book, bought & paid for.

I don't expect anyone who isn't a lawyer to understand how to read this statue and come to the conclusion I have, and I will gladly defer to an intellectual property lawyer who says I am wrong on this point, but my conclusion is based on the way that the exclusions in the law are phrased. Rather than try to educate everyone in how to read like a lawyer, I will refer to something that is analogous to what I mean, and which most everyone here, being readers, will understand: What we have here is an instance of the dog in the night:

Gregory (Scotland Yard detective): "Is there any other point to which you would wish to draw my attention?"
Holmes: "To the curious incident of the dog in the night-time."
Gregory: "The dog did nothing in the night-time."
Holmes: "That was the curious incident."

In other words, it is what is omitted in the exclusions that tells me that private stripping of DRM is not forbidden by the DMCA.

But of course, it is in the interests of Big Publishing that everyone assume that you can never, ever, under any circumstance, not even to save a drowning baby, strip their precious DRM from the book they graciously let you read on the ereader that you have to buy from them. So they are happy to let you continue to think that to strip the DRM on a book you have bought is a crime under all circumstances.

It ain't.

Do NOT conclude from this, however, that you can take your newly stripped ebook and upload it to the forum, freely, and without desiring commercial advantage or financial gain. You can't do that legally, but the reason is not the DMCA, at least not on your end. It's the general copyright law. I am not going to take the time to check the copyright statutes about criminal penalties, so you can take your chances on going to prison, but I know you can be sued, and you will lose.

[Harmon]

Originally Posted by RickyMaveety

It is a crime under the DMCA which states:

"No person shall circumvent a technological measure that effectively controls access to a work protected under this title."

Since stripping DRM is circumventing the DRM, it is definitely covered under the DMCA. No question about it.

Does that mean that anyone is going to actually prosecute an individual who strips DRM from a digital book for their own use? Highly unlikely.

You have to read the whole law, not just a provision of it. The way many laws are written, they start off with this wholesale forbidding of whatever, and then it gets nuanced away, a piece here distinguished, a piece there, written in Polish Reverse Logic (remember that, you geeks?) in subsection (a)(1)(B)ii, until finally the whole thing is riddled with holes, in order that lawyers can have jobs interpreting the mess.

That's what has happened with the DMCA. It starts off with this Draconian statement, then it turns out that you won't actually go to jail unless you are trying to make some bucks off the process, because that turns out to be the crime.

[HarryT]

But, with respect Harmon, if you remove DRM to avoid having to re-purchase a book for a different type of device, then you are doing so for reasons of "private financial gain", and hence you are committing an offence under the DMCA.

[Harmon]

Originally Posted by HarryT

But, with respect Harmon, if you remove DRM to avoid having to re-purchase a book for a different type of device, then you are doing so for reasons of "private financial gain", and hence you are committing an offence under the DMCA.

First of all, the avoidance of a cost is not "gain." If it were, you would have to pay tax on it. Believe me, the IRS would tell you so. "Gain" means "gain." It does not mean "avoiding expense." Particularly when construing a criminal statute.

Secondly, when you unpack the phrase "commercial advantage or private financial gain" it should be clear that what Congress was trying to do is criminalize the act of unDRMing a file and then trying to profit off of it in some fashion.

If Congress had wanted to adopt your meaning, all they had to do was use the words "commercial or private financial advantage." Arguably, that would stretch to the meaning you suggest. But instead, they used "commercial advantage or private financial gain." The first phrase is aimed at business or business-like activity. The second is aimed at non-business activity. The first does not require any gain - there's a crime even if the activity has a loss, or is not intended to make money per se, but to somehow secure a better position visavis your competitors. The second does require gain. There's a crime even if there's not a business, as long as there is a gain.

As long as you are acting as a private person - that is, not in the context of a commercial activity - and are not attempting to profit by the stripping, you can strip DRM of books you own all you want, as far as the DMCA criminal provisions are concerned. In fact, it appears to me that you can do it as a favor for your friends as well. Depending on what you do & how you do it, you might run afoul of other copyright law, but not of the DMCA.

On the civil side of the DMCA, you could be sued, but I think you'd win, because the mere stripping of DRM is not enough. The plaintiff has to prove injury resulting from your stripping. As long as the stripping is within the context of "fair use," I don't see how a court could find any "injury." Removing DRM in order to read a book that you own is not in any way an injury to anyone.

The more I read this statute, the clearer this becomes. The other provisions of the law are aimed at setting up exceptions for activities that might otherwise fall under the concept of "commercial advantage" or where there might arguably be an injury under normal copyright law. The most interesting part is where the statute sets up a procedure for what regulators call a "safe harbor" by the Librarian of Congress. This appears to me to give the Librarian the ability to codify a good deal of copyright law.

I must confess that if you accept that DRM is a good thing - which I don't - then the DMCA is a pretty reasonable piece of legislation. The place where it falls down is in failing to state explicitly that it is not aimed at the private user stripping DRM for strictly personal purposes.

[kyliedork]

Originally Posted by Harmon

I read a post recently about viruses in eBooks, and someone remarked that DRM was the only virus he was aware of.
.

Actually DRM is malware

[kacir]

Thank You Harmon for a very interesting insight.

[HarryT]

Originally Posted by Harmon

As long as you are acting as a private person - that is, not in the context of a commercial activity - and are not attempting to profit by the stripping, you can strip DRM of books you own all you want, as far as the DMCA criminal provisions are concerned.

You are, I believe, the only person on the planet to adopt this interesting interpretation of the law .

[kacir]

Originally Posted by HarryT

You are, I believe, the only person on the planet to adopt this interesting interpretation of the law .

No. There is at least two of us ;-)

[Lilly]

Originally Posted by kacir

No. There is at least two of us ;-)

Make that 3! I bought the Kindle with every intention of shopping anywhere I want and to use all purchases in both my Sony & kindle. I was doing that when I had only the Sony. I've not bought a book from the Sony store since January 2007, which is after initial month of owning it. I bought only Lit files for a long time and then I started buying Mobi files when I wanted a book and could not find it in Lit format. So I learned about PID & mobideDRM, all without yet owning a Mobi device. I would NOT shop at the Amazon store, no matter how good the prices are if I could not liberate my book. I've returned just 2 ebook purchases to Amazon and that's because they turned out to be Topaz and bought them at a higher cost at BooksonBoard.