The intersection of DRM, fair use, and ereader device spying

[bigtext]

Originally Posted by Lynx-lynx

A couple of observations by me:

i) can the cloud owner 'look into' your file base with them? If it is part of their TOS that they can look into your deposits, then I would be very wary of placing anything with them.

Thanks for your observations. I wanted to clarify what my perception is of what is happening. Whether or not your books or stored on the cloud or side loaded, it is my impression that the ereader you are using keeps track of what you do on the device itself. When the device connects via wifi (or 3G in the case of Amazon) it uploads the stored information off the device. The original article from the Wall Street Journal in the thread I linked to makes it clear that all the major companies like Amazon, Barnes and Noble, Apple, Google, and Kobo are engaged in tracking your reading habits for marketing and consumer intelligence purposes. Amazon has a feature, for example, that publicly shows the most popular highlighted passages in a book.

On the Nook there is a hidden partition that stores this data that isn't accessible unless you root the device. Even if you root the device I don't think there is any clear guide that explains where all the collected data is within the file system. It's also clear the data doesn't go away for a book if you delete it from the device. If you plug the device in via USB and delete book files only to restore them later you will find that it has remembered your previous bookmarks, highlights, etc.

Originally Posted by Lynx-lynx

ii) if there is no legal entitlement to the cloud provider to look into your file storage without proper legal intervention, eg warrant, then no-one should know what's been stored.

I'm not completely clear on what you are saying here. If you are saying that the cloud provider (which is really Amazon, B&N, etc in these cases) has no legal right to do this then I think you are mistaken. I don't think there are any laws that prevent these companies from tracking whatever you do on the device. If you are saying that law enforcement agencies need warrants to get that information that is not definitive either except for certain states. The Wall Street Journal article says this:

EFF has pressed for legislation to prevent digital book retailers from handing over information about individuals' reading habits as evidence to law enforcement agencies without a court's approval. Earlier this year, California instituted the "reader privacy act," which makes it more difficult for law-enforcement groups to gain access to consumers' digital reading records. Under the new law, agencies must get a court order before they can require digital booksellers to turn over information revealing which books their customers have browsed, purchased, read and underlined. The American Civil Liberties Union and EFF, which partnered with Google and other organizations to push for the legislation, are now seeking to enact similar laws in other states.

So only California residents are protected by the law from having their information handed over without a warrant. Not that a warrant is necessarily a huge barrier. If Amazon loses a lawsuit against a big publisher for access to their database for DRM-violaters and\or piracy then the legal system is going to ultimately issue a warrant if Amazon refuses to hand over the information.

[spindlegirl]

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[bigtext]

Originally Posted by WillysJeepMan

You bought a DRM'ed book knowing that it was locked into that particular store.

I think that is a fair point to make against someone on this thread who visits these forums. I think we can all agree that the people who are interested in the discussions on this web site are probably better informed than the majority of the population that is out there. Most people who purchase an e-reader and e-books are probably fairly ignorant about what DRM is or the nature of the legal agreements they enter and agree to on some website or when they first start their new device. Take, for example, the famous checkbox on web sites that says something like "I agree to abide by all the conditions laid out in Terms and Conditions [Click Here]". Most people just check the check box and never even pull up the web page with the Terms and Conditions.

Furthermore, many people aren't good at thinking a few years into the future. If you are interested in buying a Kindle today then it may not occur to you that there is something three years down the road that may lead you to wanting to purchase a device from another company. Maybe you were really freaked out about the incident where they pulled copies of George Orwell's 1984 off their devices without their consent. So now you want to buy a Nook or Kobo or Sony device? But you didn't listen to the friend who warned you about DRM (or didn't have anyone warn you) when you first bought the device and have spent over $400 in buying Kindle ebooks that you are basically throwing away unless you continue to use the Kindle platform.

What would you advise for a person in that situation? Should or shouldn't they crack their DRM to recover there $400 investment in ebooks?

Originally Posted by spindlegirl

DRM is never going to go away because the majority are "ok" with it.

They are okay with it or ignorant or a combination of both since some people can't draw the line between DRM and having their choices for purchasing a hardware device limited in the future. You could convince everyone who comes to this web site about boycotting DRM materials and it would hardly make a dent in the market. To realize how tiny we are here just look at thispoll thread asking people about DRM. Less than 300 votes since early February 2012.

Consumer power is a nice thing to talk about it, but the reality is it doesn't work in a lot of cases. You would need a concentrated effort by the mainstream media to really have any chance of getting to a critical mass here and don't count on that since a lot of these media companies are owned or part of the same parent company of major publishing houses.

Actually, about the only hope I have for DRM going away right now is if the DOJ wins their lawsuit against the publishers on agency pricing. If that happens then the publishers may want to try to weaken Amazon by taking steps to prevent the problem of device lock-in. That means dumping DRM and maybe, if possible with their intellectual property rights, only allowing selling e-books in the epub format. I'm not holding my breath, but its the only opportunity I see.

[speakingtohe]

I would think that Amazon be happy that you had replaced the Nook with a kindle.

I doubt that they will waste much effort on the legitimacy of books bought from other sellers.

AFAIK they do not have a legitimate method of determining where you bought books and whether you stripped the DRM.

To accomplish this it seems to me that they would have to access and examine your actual ebooks and if the books were purchased elsewhere (not overed by Amazon's TOS if it even covers this for the books they sell) it could constitute invasion of privacy and even be contrued as piracy.

Perhaps Barnes & Noble could examine a book purchased from them on the kindle but I doubt that Amazon would help.

Overall I question the legality of using your bandwith to examine books on your device.

As to whether Amazon would care where you bought books previously, unless they have a monopoly on the book what could they do. And why would they want to. Most retailers do not try to punish you for buying elsewhere. They do not refuse you service or even give you a dirty look if you walk in wearing or carrying items bought at a competitor.

An interesting question, but Amazon focuses more on giving good service rather than spying on customers at present.

Helen

[spindlegirl]

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[cfrizz]

Originally Posted by WillysJeepMan

Who held a gun to your head and forced you to buy DRM'ed ebooks?! You bought a DRM'ed book knowing that it was locked into that particular store. That's the agreement you entered into when you made that purchase. Why you feel entitled to modify the terms of that agreement after-the-fact is puzzling to me..

I read what I like, I'm not about to buy a book or just settle for reading free classics that I have zero interest in, to try to force non-caring publishers to drop drm, that's just stupid as far as I'm concerned. And my doing that will have NO effect on the rest of the buying public. I'm entitled to strip drm because once I paid my money that book becomes MY property.

And please don't start with the license..blah blah blah. I don't give a damn what they think they are selling me in order to try to control me, I only care about what I know my rights are once I purchase a product.

I did my research BEFORE I bought my first reader, so I knew which stores would try to keep me locked into their brand, and made sure that I bought a reader & the only format that would allow me to keep my freedom of choice.

The music companies also tried to force drm down our throats, well we all know how that turned out. The same will eventually happen with ebooks. But in the meantime, I'm ahead of the curve by stripping drm, and enjoying the books that I like to read.

So if you want to convince yourself that you are happy to settle for old dusty but free classics and that you are making an impact on changing the minds of price gouging, manipulative aholes that run the publishing companies, go right ahead.

[Elfwreck]

Originally Posted by bigtext

The question in my mind becomes does Amazon (or flip the scenario around to any other company with a reading device that connects to the cloud) keep track of the fact that there are books on your Kindle device that don't have DRM on them that should?

There is no way to detect "books that should have DRM but don't." They can detect, maybe, "ebooks that have the same title & much of the same metadata as the books we sell with DRM," but there's no way to confirm that an individual didn't get a non-DRM'd version from the author or publisher legitimately. It's also not clear whether scan-and-convert for personal use is illegal.

It's *possible* they could detect "almost the exact same metadata as a DRM'd book," therefore tracking it as one that's had the DRM removed, but it's also possible that converting through Calibre (or something else) removes the identifying marks that connect it to the DRM'd version.

Also, again: they cannot track whether or not legitimate permission was granted, as was the case with Scalzi's Redshirts. A rights-holder can grant permission to remove DRM, either globally or singularly--can say "you want to review my book and have purchased Amazon's version but want to read it on your nook? Go ahead & run it through a DRM-removal program; that's fine."

While that kind of permission isn't common, it does happen, and there is *no way* for software to detect it. Permission-to-copy is not part of the metadata being copied.

Even if Amazon could detect "drm-removed version," they're not authorized to do anything about it; they're not the owner of copyright, and they can't be appointed "copyright enforcer" with no other rights over the original material. Righthaven attempted that game and got slammed down solidly; courts ruled that they didn't have standing to file suit because the rightsholder can't sell "right to prosecute for infringement" without any actual transfer of rights over the use of the material.

In order for Amazon (or whoever) to go after "infringement" based on DRM removal, it would need to have rights to grant permission to use that material. The courts ruled that there is no "right to sue over unauthorized copies" if there's no right to allow authorized copies.

[Giggleton]

What kind of a state do we live in where books are sold with obsolesence practically built in? A crazy one it seems to me.

DRM stripping shouldn't be illegal, but DRM should be.

[SteveEisenberg]

Originally Posted by Giggleton

DRM stripping shouldn't be illegal, but DRM should be.

Until now, I thought that posters linking you to twentieth century communist tyrants were off-base, but now I'm not so sure. What punishment are you proposing for this new crime?

[WillysJeepMan]

Originally Posted by cfrizz

I read what I like, I'm not about to buy a book or just settle for reading free classics that I have zero interest in, to try to force non-caring publishers to drop drm, that's just stupid as far as I'm concerned. And my doing that will have NO effect on the rest of the buying public. I'm entitled to strip drm because once I paid my money that book becomes MY property.

And please don't start with the license..blah blah blah. I don't give a damn what they think they are selling me in order to try to control me, I only care about what I know my rights are once I purchase a product.

Ah, that explains it. It appears that you do not understand what you actually paid for.

Here's a hint: you didn't "purchase" what you think you did.

[jgaiser]

Originally Posted by WillysJeepMan

Here's a hint: you didn't "purchase" what you think you did.

Sure I did. Now the publisher might think differently, but *I* own the book and I'll do with it as I want (short of offering it up to the world).

You are perfectly welcome to drink the publishers kool-aid, but I have no intention in doing so.

[bigtext]

Originally Posted by speakingtohe

An interesting question, but Amazon focuses more on giving good service rather than spying on customers at present.

When I refer to Amazon I'm simply using it as a specific example. I agree that Amazon would not be turning their customers in for DRM violations. That would be horrible PR and bad for future sales. If it did happen it would probably achieve the mass media penetration that DRM needs in order for the general public to put pressure in form of boycotts or getting some politicians attention.

If Amazon or other companies are keeping information on DRM-state per ebook then it is possible these companies could be, in a court room situation, be forced to comply with the orders of a judge and hand over the information.

Originally Posted by speakingtohe

Overall I question the legality of using your bandwith to examine books on your device.

See the Wall Street Journal article I have linked to. They are already doing it. We aren't talking about a large amount of bandwidth here. Most e-books are smaller than your average digital photo. Also keep in mind that with a device like the Kindle Fire you will be purchasing movies to watch on the device. Bandwidth for books is miniscule in comparison.

Actually a company that one may want to be worried about is Barnes and Noble. Amazon is in good financial shape, but Barnes and Noble is on shaky ground. Is it so hard to imagine that a private equity firm might buy the company up and then claim ownership over the data that they may want to sell to publishers, or anyone for that matter, for a profit? As the article states the publishers are already very eager to get their hands on the kind of data that the devices are collecting. Not necessarily for DRM or piracy reasons, but to know how their books are being read.

[bigtext]

Originally Posted by Elfwreck

Even if Amazon could detect "drm-removed version," they're not authorized to do anything about it; they're not the owner of copyright, and they can't be appointed "copyright enforcer" with no other rights over the original material.

But Amazon could be sued by a publisher or some industry representative group like the RIAA is for music to get access to the information.

The Redshirts case you present is interesting and encouraging. However, it doesn't speak to the general problem. First off you've identified a book published by TOR, a company that is already liberal with its DRM policy. Do you know of a retailer where you can buy George R.R. Martin's Game of Thrones ebook without DRM? We could go down the New York Times best seller list at this point and ask how many of these titles are sold by any of the retailers out there without DRM. I would guess we would get a fairly small percentage.

Now let's say you bought all the books on the New York Times bestseller for over a year. What is the probability that you got access to a DRM free copy legitimately for ALL those titles? In other words the more DRM free books you have in your collection the more it looks like you either pirated your collection or removed the DRM yourself.

I somewhat regret using Amazon as an example because Amazon is only a problem in the sense of how they like to monitor things. I don't even know if they track DRM-state. In a certain sense this is all hypothetical to illustrate the problem that your decision to strip DRM may not be as private as you think it is. I'm sure Amazon doesn't want the PR nightmare would ensue if they actually started punishing their customers with this kind of information. An industry group representing the authors\publishers though could probably care less just like the RIAA.

[Sydney's Mom]

[QUOTE=bigtext;2139307]Imagine the scenario where you own a Nook and have purchased hundreds of dollars of epubs from Barnes and Noble. At some point in the future you are in the market for another e-reader and decide to purchase a Kindle. What do you do with the epubs you purchased from Barnes and Noble? This is where the advice I so often see comes in to get Calibre, add the DRM removal extensions, convert the epubs to mobi format, and transfer the converted files to the Kindle.

The question in my mind becomes does Amazon (or flip the scenario around to any other company with a reading device that connects to the cloud) keep track of the fact that there are books on your Kindle device that don't have DRM on them that should? I'm not saying there is anyone actively monitoring what you do in the moment, but simply creating a permanent record via electronic databases that can be retrieved at any point in time in the future.QUOTE]

This is exactly why I use Dropbox to back up my ebooks, rather than the Amazon cloud, although I have enough room on the Amazon cloud, and am always running into limits on Dropbox. Amazon does backup any books I email to my kindle, so a number of the books I bought elsewhere are being stored on the Amazon servers.

Amazon ran into a HUGE public relations nightmare with pulling counterfeit copies of 1984 off kindles. And I was actually sympathetic with them on that one. They committed a crime for selling these books. But if they admit they are spying on my kindle, and are going to tattle on me for removing DRM for my personal use, I think ereaders will be done.

I bought several hundred books at 5 cents each in epub during a sale in January. Amazon has every one of these books, at prices of $2.99-$4.59. They certainy could remove these books, or prevent me from sending them by email. If they did, I would just transfer them by UBS. If they removed those books, aside from the negative publicity, they would never sell another kindle, and those that had kindles, would never turn them on again.

Now, if I were reading child pornography on my kindle, that would be another matter altogether. I have no doubt that that sort of issue will be the next one to occur. I would be in favor of Amazon or Barnes and Noble outing child pornographers (since the mere possession of such material is a crime). But the fact that I bought my books at bookseller B, instead of Amazon? Bookseller B is not going to want to sue me, because they don't have any damages. Amazon is not going to be at all sympathetic.

So - although personally I think the odds of Amazon looking at my account for books with DRM removed are low, if the law and/or political mood would change, I don't want to count of the removal of the books from the Amaon cloud as being effective, since that "stuff" remains forever.

[Elfwreck]

Originally Posted by bigtext

But Amazon could be sued by a publisher or some industry representative group like the RIAA is for music to get access to the information.

It's entirely uncertain how much access Amazon has to sideloaded & personal document reading info. If it wasn't purchased through Amazon, they may not have a way to track it--and more, they have much less right to collect or sell that information; the Kindle TOS gives them rights to certain data related to digital purchases, but its rights to your other data are a lot blurrier.

Now let's say you bought all the books on the New York Times bestseller for over a year. What is the probability that you got access to a DRM free copy legitimately for ALL those titles?

Much of that depends on whether it's illegal to strip DRM for personal use, an issue that has yet to hit the courts. If that's legal, they can easily all be legit.

And the issue of "what's the likelihood that a person got permission for 85 bestsellers to remove DRM" is irrelevant in court... the issue will be "Did, or did not, this particular person have permission... and did you know that before you accessed their data?"

In other words the more DRM free books you have in your collection the more it looks like you either pirated your collection or removed the DRM yourself.

Heh. All books in my collections are DRM-free. (And wifi free, so it's a fairly moot point for me, but for those who deal with cloud-storage reading, it's a topic worth some consideration.)

In a certain sense this is all hypothetical to illustrate the problem that your decision to strip DRM may not be as private as you think it is.

I suspect that checking the details of non-DRM'd/sideloaded content, even if it's allowed by the TOS, is far too much of a bandwidth drain. I don't mean "of the wireless service," but of the company itself... to find out if I'm reading The Game Of Thrones by George RR Martin, acquired by stripping the DRM from a purchased copy, might be minor--the UUID could be used, perhaps. (Not sure if Calibre assigns a new UUID or not.) However, finding out if Song_Ice_Fire.PDF is "Martin's book, downloaded from a torrent site" or "the quickstart rules for Green Ronin's RPG, renamed" or "the map from tor.com" or "a blog article about the books" or a fanfic or some other content with a filename that sounds somewhat *like* Martin's book title, is hellishly complicated.

Amazon (nor anyone else) doesn't have the time to put into sorting out what personal content has similar filenames to works in copyright that are currently only distributed with DRM. I don't think any retailer is going to start tracking use of personal documents, just because there's so *much*, and the potential return to them is so little, even if they do have the legal right to read those documents, which I'm not at all sure they do.

It's likely that anything sideloaded is invisible to them (after all, you didn't give them permission to track use of that content at all), and personal documents sent through their convert-and-email aren't likely to be tracked. They don't want to be bombarded with requests to sync random user content, especially when that could mean viruses etc getting into their system. They *really* don't want to be asked about lending ebooks not bought from them.