Why I Prefer Sony 505 Over Kindle 2

[InlawBiker]

It's a sad state of affairs when Sony is considered the champion of consumers in a particular market. I have to admit though that their business model is more friendly than Amazon's.

It seems that every conversation inevitably ends up being about DRM, but, my feeling is that I shouldn't have to be a lawyer, or dissect the DMCA to figure out if I'm a criminal when I read a $10 book. Nor should I have to learn the intricacies of DRM removal to read works on a device I paid $400 for. It should just work and it shouldn't assume I'm dishonest.

So I guess I can conclude that the eBook market hasn't settled itself out yet. As it turns out, I bought my Kindle 1 used and I DO know how to use those scripts. So I'll keep working in my own best interest until the big companies figure it out. It's supposed to be about working for your customers' needs, not your own.

[Xenophon]

As I wrote over in another thread (here):

Originally Posted by Xenophon

For those who are late to the party, it is worth knowing a few things about posters and their positions on DRM.

• Pretty much no one here at MobileRead actually likes it.
• There is a group of posters who keep referring to the "exception" as a reason why anyone can legally remove DRM from an eBook (one of them posted above). Other posters claim that this exception applies only to individuals who are themselves handicapped in ways that require read-aloud functionality.
• There is another group of posters who keep claiming the removing DRM is "almost certainly illegal" under the DMCA. Or even "clearly illegal" under the DMCA. Some of them have posted above.
• Still other posters (including me) maintain that the legal status of removing DRM from legally acquired content (for personal use only) is entirely unclear and will remain so either until congress passes new legislation or the courts straighten it out via case law and precedent. In taking this position, I am arguing from authority (always a poor tactic!) having heard eminent legal experts say that removing DRM from legally acquired content is obviously legal, and other equally eminent legal experts say that it is obviously illegal.
• MobileRead site policy is to support legal acquisition of eBooks and to forbid discussion of techniques for "pirating" ebooks along with forbidding discussion of tools and sites for same. (I think I got that right...)

All of the above is speaking in terms of U.S. law, of course. Other countries, other laws.

We now return to your regularly scheduled disagreements...


Xenophon

It seems worth repeating the above.

That said, Harmon appears to fall into a fourth camp (the "clearly legal" group). I've heard a bunch of eminent legal experts take that position, but as a non-lawyer I do not trust my notes to correctly represent their arguments -- which is why I have not attempted to present any of those arguments here. Harmon's analysis doesn't look like any of what I see in the notes I took in the IP seminar I attended, but who knows whether that means anything or not.

Anyway, I can assure you (and especially HarryT) that there are plenty of lawyers who specialize in U.S. IP Law who agree with Harmon's conclusion. And plenty of others who don't. Go figure!

Xenophon

[Harmon]

Originally Posted by HarryT

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

Well, not that I believe everything I read on Wikipedia, but it's quite clear that the article on the DMCA agrees with me, so clearly I am not the only person on the planet to think so:

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.[13] 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. (bolding added.)

Nor would I expect every lawyer to agree with my reading of the statute. After all, if we all agreed, how would we make a living?

The thing is, as far as I know, there have been NO prosecutions brought against private users stripping DRM for purely personal use. Do you know of any? I don't think there are even any civil actions that have been filed under such circumstances, although there have been threats of such.

And either fortunately (for users) or unfortunately (for the state of the law) there aren't going to be any prosecutions or lawsuits, because how would anyone ever know or be able to prove that any private user stripped the DRM?

Be that as it may, I am here to tell you that in my career, I have recommended prosecutions to the Department of Justice, and have personally tried non-criminal fraud cases. I know what the standards of proof are, and I know what government lawyers are willing to do - and not do. In order for someone to be prosecuted criminally under this statute, he'd have to collect all the evidence himself and send it to the US Attorney, along with a signed confession. And even if he did, it's my view that the US Attorney would decide that there's no prosecutable crime.

But one of the problems with the DMCA is that it creates an environment in which ordinary people are restrained from doing things which are perfectly legal, because they don't really know how to read the law, and are understandably unwilling to risk violating it.

[Harmon]

Originally Posted by Xenophon

As I wrote over in another thread (here):

It seems worth repeating the above.

That said, Harmon appears to fall into a fourth camp (the "clearly legal" group). I've heard a bunch of eminent legal experts take that position, but as a non-lawyer I do not trust my notes to correctly represent their arguments -- which is why I have not attempted to present any of those arguments here. Harmon's analysis doesn't look like any of what I see in the notes I took in the IP seminar I attended, but who knows whether that means anything or not.

Anyway, I can assure you (and especially HarryT) that there are plenty of lawyers who specialize in U.S. IP Law who agree with Harmon's conclusion. And plenty of others who don't. Go figure!

Xenophon

I expect that the "clearly legal" group is composed of a bunch of people with a lot of different reasons why they reached their conclusions.

I've limited my position to what I see as the clear requirements of the statute for a criminal prosecution to be successful.

Having said that, there seems to me to be a fundamental conflict between the DCMA and the First Amendment. I wouldn't be surprised if at some point, some court declares the the whole damn thing to be unconstitutional. But that's an entirely different argument for "clearly legal," and would take me a whole lot more time to work through and understand, even assuming that my gut reaction is correct, which it might not be.

But a more likely outcome is not a legal one, so I can't claim any special understanding. I just think that it is likely that DRM will become irrelevant, either because it becomes increasingly impossible, technologically, to enforce, or more likely, because market forces will eliminate it.

[kacir]

I live in a country where we do not have DMCA.
Yet I wanted to see for myself why it is that only an "American Lawyer" (TM) is able to read the dammed thing.

I went to my favorite site for beginning any investigation, Wikipedia.
Wikipedia does, indeed, have a nice article with a nice link to the Library Of Congress that holds THE authoritative version.

Holy $DEITY!
That thing is utterly, completely, totally, hopelessly unreadable. There is no wonder the USA is home to more than half of worlds lawyers.
It took me some time (and lots of checking and research) to believe that I am, indeed, looking at the real thing.

Holy [please insert your favorite swearword here]!
That thing is basically what programmers call "a diff" or "a patch". It tells you to get some laws and treaties and replace a bunch of words here and there, slightly altering or completely changing the law in question.
All you need to apply a patch in a program and get a complete text of "the source" on a Unix system is to change to the directory and issue command 'make patch'. That is it.
I am starting to suspect that to get the real text of what DMCA says is to hire a bunch of lawyers for something like $300 an hour ...

[Harmon]

Originally Posted by kacir

I am starting to suspect that to get the real text of what DMCA says is to hire a bunch of lawyers for something like $300 an hour ...

$500. We have a Congress to support.

[tompe]

Wasn't there something in the laws that you could not possess tools to remove DRM? I thought that the argument was that to remove the DRM you have to possess the tool to do it and that was not allowed.

[HarryT]

Development and distribution of DRM-circumvention tools are certainly both specifically prohibited. I don't know if possession of them is an offence.

[daffy4u]

Originally Posted by tompe

Wasn't there something in the laws that you could not possess tools to remove DRM? I thought that the argument was that to remove the DRM you have to possess the tool to do it and that was not allowed.

If that is true, I can see a new business that would be wildly popular.

Book buyer in DCMA country sends a DRMed ebook to a service in another country where having DRM tools is not illegal. For a small fee or free (if they want to "stick it to the man"), the service will remove the DRM from the book and send it back to.

Book buyer in DCMA country has hands that are clean since they do not own the DRM tools but still get a DRM free book.

[Xenophon]

Originally Posted by HarryT

Development and distribution of DRM-circumvention tools are certainly both specifically prohibited. I don't know if possession of them is an offence.

Possession is not specifically prohibited. And use may or may not be prohibited, depending on one's interpretation of a law that is, um... clear as mud.* Eminent legal scholars line up on both sides of that question; we'll probably have to wait for the courts to sort it out. Or for Congress to change the law (yeah, right ).

Xenophon

* To quote Harry Belafonte: "Oh it was clear as mud and it covered the ground, and the confusion made me brain go round..."

[Harmon]

Originally Posted by Xenophon

Possession is not specifically prohibited. And use may or may not be prohibited, depending on one's interpretation of a law that is, um... clear as mud.* Eminent legal scholars line up on both sides of that question; we'll probably have to wait for the courts to sort it out. Or for Congress to change the law (yeah, right ).
"

I don't see anything in the law that prohibits either possession or personal use. What the law prohibits is:

"manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof.."

That doesn't say anything about merely possessing or using an unDRM program. Any such possession or use has to occur in the context of manufacturing, importing, offering to the public, providing, or trafficking in the unDRM program.

This reminds me very much of the way that Prohibition operated in the US. Strictly speaking, it was never actually illegal to possess alcohol for your own personal use, or drink alcohol. You just couldn't "manufacture, import, offer to the public, provide, or otherwise traffic" in it.

[Harmon]

Originally Posted by daffy4u

If that is true, I can see a new business that would be wildly popular.

Book buyer in DCMA country sends a DRMed ebook to a service in another country where having DRM tools is not illegal. For a small fee or free (if they want to "stick it to the man"), the service will remove the DRM from the book and send it back to.

Book buyer in DCMA country has hands that are clean since they do not own the DRM tools but still get a DRM free book.

Well, "Book Buyer" might find out the hard way that he has conspired to violate the law - that is, conspired with the provider of the service, even though he personally doesn't profit. So even if the provider is beyond the reach of the law, Book Buyer wouldn't be...

Here's the law again:

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—

Notice that it does not say whose commercial advantage it has to be for. (BTW, I think that even a free service might be regarded as one involving "commercial advantage" for the service provider, far-fetched as that might seem.)

That's why I have been careful to say that it's only "do it yourself, for yourself" unDRMing that is kosher. When you start involving other people, all bets are off...

[daffy4u]

Originally Posted by Harmon

Well, "Book Buyer" might find out the hard way that he has conspired to violate the law - that is, conspired with the provider of the service, even though he personally don't profit. So even if the provider is beyond the reach of the law, Book Buyer wouldn't be...

Here's the law again:

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—

Notice that it does not say who's commercial advantage it has to be for. (BTW, I think that even a free service might be regarded as one involving "commercial advantage" for the service provider, far-fetched as that might seem.)

That's why I have been careful to say that it's only "do it yourself, for yourself" unDRMing that is kosher. When you start involving other people, all bets are off...

Rats! There goes my island in the Caribbean.