Free The eBooks! New petition calls for supporting consumer ownership of ebooks…I think

Yesterday, I saw a link to a new petition on the U.S. government’s website to allow the “unlocking” of ebooks and reaffirmation of ownership rights by consumers for these digital goods. This comes on the heels of the Obama administration coming out strongly in favor of fully legalizing the jailbreaking or unlocking of cell phones. I agree with both sentiments, but the new petition has some issues. Here is the text: 

Protect Readers’ Rights by Unlocking Ebooks

The White House recently came out in favor of allowing consumers to unlock their own cellular telephones. We are asking the White House to apply the same laws and provisions to ebooks.

The purchase of a book, whether online or not, is a purchase, not a license. Digital books should be legal to read on any device that supports standard text files. Legally purchased digital books should not self-destruct, expire or disapper, except under conditions of damage or obsalescence. Within reasonable limits, book purchasers have the right to lend or give books to friends, charitable organizations and libraries. Finally, libraries should be permitted to lend ebooks under the same rules as physical books.

We ask the Obama Administration to champion the rights of readers to own their ebooks.

So, typos notwithstanding, let’s discuss. And by the way, if you’re going to post a petition concerning important issues like literature and consumer rights, you really should spellcheck the damn thing, otherwise your credibility could “disapper.”

For starters, the White House didn’t apply any laws or provisions regarding unlocked cell phones, they only expressed support for the notion going forward. The relevant laws concerning this, specifically in the DMCA, clearly ban the activity. Their opinion on this is all it is, just an opinion. For cell phone unlocking to actually be legal, it’ll take a legislative fix. Good luck with that. Not to mention, they stopped short of showing support for similar unlocking of ereaders and video game consoles, etc (they did mention tablets but only in the limited sense that they were becoming more like smart phones which dedicated ereaders are definitely not). A logical view would follow that if jailbreaking phones is okay, then doing so with all devices should be as well. But the White House doesn’t stretch that far, with their stated position directed at preventing lock-in by telecomm service providers and has nothing at all to do with content providers. In fact, the White House specifically called for “narrow legislative fixes in the telecommunications space.” That’s a far cry from rallying around customer rights for content they purchase. It’s certainly a step in the right direction, but there is no law or provision in this that’s even applicable to content rights for consumers.

I completely agree with the statement that buying an ebook is a purchase not a license, but that’s far from a popular position to hold. Over the past couple months, in arguing in favor of resale rights to digital goods, I found myself in many places arguing just that point of view. Content providers, including many independent writers, are clinging to the license scheme, and with some solid justification. There have been a few conflicting court decisions, but it’s far from decided that the sale referred to here is, legally speaking, actually a sale. I believe it is, and I think the licensing regime we’ve got going on here is potentionally the greatest threat to consumer rights in any of our lifetimes, but I’m definitely on the minority side of that point of view. It’s going to take a favorable SCOTUS ruling to affirm such rights, as a legislative fix simply isn’t happening in this atmosphere, and I wouldn’t hold my breath for it, even if I absolutely believe it’s what needs to happen to retain balance between producers and consumers in the stream of commerce.

I’m somewhat confused by the statement that says digital books should be legal to read on devices that support standard text files. Ebooks aren’t standard text files and, as formats improve (epub3, html5, etc) they’re even less comparable to simple text. Unless the petitioner is advocating for stripping off the bells and whistles to bare bones text, I don’t understand the point of this statement. Seems naive and, much like the recent lawsuit from bookstores against Amazon and the Big 6 calling for “open-source DRM,” whatever the hell that is, it comes off as very tech-ignorant.

As for libraries being able to loan ebooks under the same rules as print, I have two questions. One, ebooks aren’t print so why would you want to limit libraries to a physical standard that doesn’t necessarily apply? Secondly, and most importantly, the petition plays fast and loose with the first sale provision of copyright law. The ability of libraries to lend physical books as they have comes from first sale. The petitioner’s opening statement that an ebook buy is a purchase not a license supports a first sale position, but it also seems to go out of its way to avoid even mentioning consumer’s rights under the same provision, notably resale. Is the suggestion here that libraries should be granted a waiver to exploit first sale rights customers shouldn’t have, even though it opens with a strong statement supporting a first sale argument? I don’t get it. If the point here is to free ebooks from lockdown control of content providers, why skip the most important tool to achieve that, a true ownership stake in the ebook for the purchaser?

What I see as the big flaw in the argument here is the warping of the concept of first sale rights. Libraries can have them, apparently, the license scheme used to block them is dismissed, yet for some reason, consumers should still be left wanting for their full rights under copyright law? Why? And what, exactly, are reasonable limits to purchasers lending ebooks? Why should libraries get more rights to lend books than consumers? How is it that I can give away or donate said ebook, a library can then use first sale to lend it, but I can’t use the exact same provision of copyright to resell it? I thought this was about freeing ebooks for consumers, but it seems more like exempting libraries than truly benefitting paying readers.

The petition ends with a call for the Obama administration to champion the rights of readers to own their ebooks. I agree, but that’s not what they’re calling for here. This petition still ignores first sale rights for consumers while championing them for libraries and even accepting restrictions on consumers to lend or give away said ebooks. This isn’t ownership at all, but simply a desire to read a Kindle ebook on a Nook or similar type of arrangement. If all you really want is to prevent content provider lock-in to specific devices, then say that. Don’t muddle the issue with notions of first sale or ownership that you’re not even advocating. The wording of the petition also allows for ebooks to be deleted or removed due to obsolescence (misspelled obsalescence, which is a fascinating freudian slip, as license schemes are already limiting the very idea of what constitutes a sale).

I think this is a nice thought, preventing vendor lock-in has some definite merits, but ultimately this petition is poorly executed and unnecessarily convoluted. And again, spellcheck, dammit!

The Great Lie Behind DRM: Just like that, a little truth seeps out…

Yesterday, I ran across this piece by internet maven (and author) Cory Doctorow detailing the contents of a letter sent by HatchetteUK and its imprint Little Brown to its writers who also publish in other territories with publishers who don’t use DRM, principally Macmillan imprint Tor, presumably. It set off a bit of a pissing contest with Little Brown’s CEO Ursula Mackenzie. In the letter, Hatchette makes a rather interesting demand of its writers, that they force their publishers in other territories to place DRM on their ebooks. Here’s Doctorow:

“I’ve just seen a letter sent to an author who has published books under Hachette’s imprints in some territories and with Tor Books and its sister companies in other territories (Tor is part of Macmillan). The letter, signed by Little, Brown U.K. CEO Ursula Mackenzie, explains to the author that Hachette has “acquired exclusive publication rights in our territories from you in good faith,” but warns that in other territories, Tor’s no-DRM policy “will make it difficult for the rights granted to us to be properly protected.” Hachette’s proposed solution: that the author insist Tor use DRM on these titles.

“The letter also contains language that will apparently be included in future Hachette imprint contracts, language that would require authors to “ensure that any of his or her licensees of rights in territories not licensed under this agreement” will use DRM.

Let’s forget for a moment that territoriality, once essential in publishing, is quickly becoming threatened by digital encroachment, and will soon be little more than yet another publisher-inflicted hindrance between readers and the books they want, if it isn’t already. (It probably is.) Primarily, I was a bit taken aback, as was Doctorow, by the audacity of a publisher dictating in pretty forceful, albeit polite, terms to writers what they can do with rights the publisher doesn’t own. Doctorow himself said, “Hachette has balls the size of Mars if it thinks it can dictate what other publishers do with titles in territories where it has no rights.”

He’s absolutely right about that, and, if it had been me who received one of those letters, I’m pretty sure my two-word reply would consist of the terms “piss” and “off.” If you’d like to tell me what I can do with the rights to my work, then buy them. Otherwise, you’re entitled to your opinion and I’m entitled to laugh at it.

Anyway, Doctorow went on with his usual anti-DRM line, one I personally find a lot to agree with. This, in turn, spurred Mackenzie to release a statement clarifying their position, taking a few jabs at Doctorow in the process. Here’s Mackenzie, as reported via The Bookseller:

“In the statement, Mackenzie confirmed that the publisher did plan to change the wording in its
contracts, but said the modification was designed to make the position clearer and that “variations” on the boiler-plate could be negotiated.

“Our new wording is clearer and we will, as always, negotiate variations of that wording with the many parties with which we trade, nearly all of whom agree with the basic principles of our DRM policy.”

So Hatchette is going to make you follow their terms whoever you publish with, in whatever territory, whether they own the rights or not, but don’t worry, it’s only negotiable boilerplate. Go back and read that second paragraph from Mackenzie again. I’ll wait. Sounds negotiable, doesn’t it? Especially the parts about variations of that wording and the various parties who nearly all agree with their position. Sure, you can negotiate to your heart’s content, you just can’t actually change anything substantive. Sounds perfectly reasonable.

Mackenzie goes on, and here’s the kicker, for me at least. In her spirited condemnation of Doctorow, she let slip a dirty little secret about said DRM and what its real purpose actually is. (Hint: it’s not fighting piracy):

“Mackenzie, who is also president of the Publishers Association, was critical of Doctorow’s position on DRM, saying that it contained “the usual long list of anti-DRM arguments”. Mackenzie stated: “We are fully aware that DRM does not inhibit determined pirates or even those who are sufficiently sophisticated to download DRM removal software. The central point is that we are in favour of DRM because it inhibits file-sharing between the mainstream readers who are so valuable to us and our authors.”

You get it now? They know DRM has no effect on piracy, and they know it doesn’t stop people with the moderate technical knowledge to do an end-around. They use it specifically to handicap what their good, paying customers can do with their legally purchased ebooks. Nice. At least, for once, I can say someone from big publishing was actually honest, for a change. If I owned that company, Mackenzie would have a pink slip on her desk this morning, along with a security guard standing by to make sure the front door didn’t hit her on the ass on the way out. Even if I willfully supported using technical means to screw the people buying my products, I would be incensed that the head of my company openly admitted it.

There, in a nutshell, is the giant lie beneath the concept of DRM. It has nothing to do with anything but creating constraints on the majority of the ebook buying public, then profiting from those artificial restrictions. If readers really were valuable to them, as she says, they wouldn’t treat them so poorly. Their value isn’t in a loyal customer relationship sense, but in an overtly exploitative one. Most of us out here paying attention already knew that, of course, it’s just a little surprising to me to see someone perpetrating the DRM fraud to openly say as much.

Mackenzie goes on:

“We are glad that we have adhered to a model of selling e-books one by one at fair prices and protected by DRM. This model is working very well; although some would like us to change it, the risks are huge and the upside is negligible.”

Of course she’s glad. She’s not the one paying overpriced rates for intentionally handicapped products. Fair prices from who’s point of view? Again, she let something slip. It’s their higher than needed pricing structure that’s protected by DRM, not the IP itself. How can you even begin to justify ebook prices anywhere near print prices in the same sentence that you admit to purposefully limiting them, effectively removing much of the tangible value that exists with a print book? You can do it because this has a lot to do with defending print. Charge higher prices while offering less value with ebooks makes print look better by comparison. That’s the theory, anyway.

Doctorow, apparently always thinking ahead, actually had a response to this in his piece before she even wrote her’s:

“If the Big Six thought Wal-Mart and the other big-box retailers had them over a barrel, just wait until the DRM vendors do to them what they did to the music industry before it abandoned DRM in a Hail Mary attempt to get some competition back into the music retail market.”

Yes, by all means, let’s follow in the music industry’s footsteps with DRM, because, you know, it only very nearly wiped out their business, but hey, this is publishing, we know best, right? Who was it that spurred all that damage to the music industry, again, after DRM locked themselves into a platform? Oh, that’s right, it was Apple, who leveraged their dominance in the mp3 player market with the iPod to redefine digital music sales. This is also the same Apple who’s iBookstore agency pricing arrangement has gotten publishers into serious, potentionally deathly hot water with anti trust investigators.

It’s also the same Apple who’s currently dominating the tablet market with the iPad. In 2012 alone, Apple is responsible for 64% of the the tablet sales for the entire planet, more than six times as many as the second place company, Samsung. By the way, Apple is also suing Samsung for those tablets, with chances of a win looking pretty good while doing it. Smartphones are also fast becoming an ebook reader of choice for many. Guess who’s a major player in that market too? Apple’s iPhone. Oh yeah, let’s totally lock ourselves into DRM in an environment where Apple is the dominant device manufacturer. What could possibly go wrong?

Not only is DRM ineffective against piracy, and easily circumvented, its only effective use seems to be exploiting paying customers who lack the expertise to get around it, as Mackenzie basically admitted. But much like publishers exploiting these poor, unsuspecting readers, DRM also serves Apple’s purposes as the dominant device manufacturer, which they will use to exploit publishers much like they did with the iPod and music companies. And all the while, the entire industry ties itself in knots over Amazon, just like the music industry did with Napster while simultaneously handing the keys to the store to Apple. This would all be hilarious if it weren’t so damn serious.

It reminds me of a line from the recent remake of Battlestar Galactica, “This has all happened before and it will happen again.” Unfortunately, while it had a good, often great run, the finale of that show ultimately sucked. Hopefully, publishers will wake up before it’s too late or find themselves facing an ending much like it.

Correction: Originally, I stated that the iPhone was the leader in smartphone sales. Turns out, they are actually third, trailing Samsung (who Apple is suing over their phones, as well as their tablets) and Nokia, who is falling precipitously but still a good ways ahead of Apple in marketshare. My confusion was probably spurred on by first hand observation. Of the 30 or so people in my immediate circle with smartphones, easily 2/3 have an iPhone (I don’t. I have an HTC. I’m contrary like that) and I’ve heard most of the holdouts suggest that they’ll be getting an iPhone on their next upgrade. Maybe they’re just more popular here in Maryland, I don’t know, but everybody and their brother seems to have one, particularly younger people. Also, I can count the number of Nokia smartphones I’ve seen folks with on the extended fingers of one hand clenched in a fist. Even so, my point stands. Apple’s marketshare on phones is growing, even if they’re not yet at the top. They’ve got Samsung tied up in court on patent related issues and Nokia is falling backwards. It’s not out of the realm of possibility the iPhone could reach #1 in the not-too-distant future. Their tablet is unquestionably dominant, however, and when talking about ebooks, the tablet is king.

The Big Problem With ebooks, DRM and Intellectual Property Rights

Here’s a rather interesting piece I read the other day about the difficulties of buying an ebook for someone other than yourself.  This has long been one of my primary concerns over the digital transition we all are neck deep in at the moment.  When we bought a vinyl album or a VHS tape or a CD or a DVD or a video game or a printed book, we owned a real tangible thing.  Certainly, we were really purchasing the content contained within that medium, but we could hold it in our hands, give it to a friend, donate it to the library or even resell it, if we so chose.  When we buy the digital equivalent of these products, what exactly are we paying for and do we really own anything at all?

The media companies tell us that we’re paying for the right to access their intellectual property per whatever terms they strictly dictate.  But to me, this is an unsatisfactory answer and clearly represents an enormous step backwards for consumers in both the value of what we purchase and the ability to put it to use.

In my lifetime, there has always been a thriving aftermarket for these products.  I, myself, have sold vast numbers of CDs, DVDs and books at various points over the years when I needed quick cash.  It was always part of the value I was purchasing to begin with.  Now, however, with intellectual property laws and wholely digital products, that aftermarket not only has ceased to exist, it has even been criminalized.  I believe this development is not only intended by media companies (the music industry fought used CD stores for years to no avail) it’s also greedy, shortsighted and potentially destructive to artists and creators.  And that doesn’t even address the fact that it represents a de facto price increase for consumers because we really have no legal right to resell the products we just purchased.

The article referenced above doesn’t address the lack of an aftermarket, but to me, it does raise some interesting and disturbing questions about what it is exactly that we’re paying for.  The author describes the nightmare of trying to purchase as ebook as a gift for someone else.  He lists off several retailers who have no options for doing so at all, and the difficulties of even dealing with the few who do.  He also makes what I believe is a very cogent point about the one retailer he dealt with where this wasn’t a problem:

“It’s worth noting that (they) may have been helped in setting this up by the fact that they sell DRM-free ebooks…”

Of course they were helped by it because DRM is the mechanism by which our rights as consumers have been taken away.  I used to buy a lot of CDs.  But then, all of a sudden, I’d buy a new disc and be forced to install some kind of ill-defined spying software on my computer just to listen to it.  Even then, I couldn’t rip a copy of a tune from the disc and make a mix tape for my car.  Shortly thereafter, I stopped buying CDs.  I had lost a significant enough amount of the value of purchasing a CD that it no longer made sense to plop down $15 for a product that no longer suited my needs.  I didn’t make a snap, sudden choice.  I just found, months later, that I had stopped even shopping for CDs.  DRM took away my abilities as a music consumer, and they lost me as a customer for that medium because of it.  If publishers don’t tread lightly here, the same thing could happen with ebooks.

I’ve published two ebooks, readily for sale at major online retailers (yes, that was a shameless plug) and I’ve eschewed DRM.  I’m fully aware that it makes my work more susceptible to piracy, I just don’t care.  Unless and until someone comes up with some DRM that makes some damned sense and isn’t just blatantly limiting consumers’ rights and their ability to use my work, I’ll never be a party to its use.

My question is why can’t I just walk into Barnes and Noble with a memory stick, buy up some ebooks, load up that stick, wrap it up and give it to my friend who has a Nook for Christmas?  Why can’t I go to Amazon,download some ebooks on my computer at home, load em up on a memory device and give it to my other friend with a Kindle for Christmas?  Why can’t I take the ebooks I’ve bought over the years, load em up on a device and donate them to my local library?  Why can’t I take the Raymond Chandler ebook series I have bought, load em up and sell it on Craigslist?

There are two reasons (well, three if you count the fact that most of that activity is either illegal or against terms of service): one is DRM that controls what we can do with products we’ve lawfully purchased.  Two is that without DRM, the files can be constantly replicated over and over and over again, and nothing could stop me from repeating this process to infinity, or by another term, engaging in blatant piracy.

So here’s what I suggest: a new form of encoding for these files that allow two simple yet profound changes.  First, each file allows the purchaser to make one copy for backup purposes, the copy encoded so as to be non-replicatable, and once that copy is made, the original also becomes impossible to copy.  It can be done.  I had DVD backup software 10 years ago that did this, made a copy of a movie but the copy itself could not be copied. 

The second suggestion, and major league game changer, is to make all files readily transferable, but not copied.  I can move an ebook from my computer to my smartphone but the process wipes out the file from the computer.  These files could be infinitely shifted from device to device but always leaving nothing behind.  I can do this right now simply by cutting and pasting.  There’s no reason we can’t have the same process built into the file itself.

Do this and we return the rights to consumers because I’m not duplicating the file every time I move it.  I’m effectively shifting the same file.  I can loan books to my friends again, just like I always could with printed copies, and if I want to read it again, they have to give it back.  I can donate them to the library again, and they can check out the book just like they have always done with printed copies.  Library patrons would still have to actually return the books, as well, so others can check them out.  I can readily and easily buy ebooks for friends as gifts every bit as simply as I can today with printed books.  And best of all, I could resell ebooks I’ve bought, creating an aftermarket for digital books that benefits both consumers and publishers just like the used book market always has.

Create DRM that allows these activities, and I’ll be totally behind it.  Technology is pretty amazing and we’ve progressed far beyond things I ever thought possible.  But we can’t head into a bright new future by taking value away from consumers, we won’t benefit nearly as much as we could by limiting the abilities of customers to do things they always have, things that bring value to their experience, and to the artist and publisher side, as well.

Why hasn’t this already happened?  Media companies don’t want it to happen.  They’re under the mistaken impression that they profit by limiting their customers rights and exerting unprecedented controls on products we lawfully purchase.  They want to destroy the aftermarket, and they want to get paid every time someone opens a book.  These changes will never come from the old guard. 

If they do happen, and I believe they should, it’ll be a startup or an industry outsider who brings it about.  It’ll be someone who sees value in expanding their customers’ abilities and experience instead of limiting them.  It’ll be someone who sees the value in a thriving aftermarket and the indirect transactions between friends, relatives and others that provide essential exposure and word of mouth that lockdown controls prohibit.

The path to the future needs to include protecting and improving value to the customer, not taking away what they already have. With these kinds of simple changes, DRM will become a driving force to real profit instead of a hindrance to it.

With Friends Like These…

Here’s more on the coming effort, particularly by magazine publishers, to make use of the soon-to-be useful and affordable for all e-readers (if we’re lucky).  I’ve been on record for being all for this effort as it, to me, makes far more sense for packaging and potentially getting people to pay for material formerly done best in print.  Adobe, the makers of the ever-popular Photoshop, Acrobat and InDesign graphic software that publishers rely on to produce their print products, is currently working on software to design products for these readers, as it appears that the locked down, device-specific controls like the Amazon Kindle’s days are numbered, thankfully.  Freedom, flexibility, and inexpensive are three words that the industry would do well to heed with this effort, lest they fall into the same trap that virtually destroyed the music industry, not just in sales but in reputation.

Which makes this guy’s comments appropriately interesting.   Steve Haber is the president of Sony’s Digital Reader Division, and came up with these gems in trying to explain why it is that his company, despite beating Amazon to the punch with its own digital reader years earlier, has been unable to capitalize like the online retailer has, even with their exorbitant revenue grab from publishers:  On the cost of e-books:  “The $9.99 price point is not a money maker.”  And, more interestingly, beating on the drum that broke the music industry’s back, copy protection software:  “You need an orderly process for selling books and DRM makes that possible.”

Okay, one at a time.  First, the price.  Yes, I think a one-size-fits-every-e-book pricing structure is pretty short-sighted.  But you can’t make money at $10 a copy?  For something that costs you virtually nothing to replicate?  Really?  Apparently, no one’s bothered to mention to this guy that there are bunches and bunches of publishers out there selling physical printed copies of books for less than $10 per copy, and they’re making money just fine.  And those copies actually involve putting out some greenbacks to print.  An e-book is an electronic copy that costs nothing more than the time it takes to duplicate to generate additional copies.  So, to review, with real books, a publisher pays for creating the original and then pays more for each additional copy, and they can make money at $10 or less per copy.  For an e-book, the publisher pays to create the original and then absolutely nothing for each additional copy up to infinity, but they can’t make money at $10?  Let’s remember, these are the same people who are still selling new CDs for up to $16 when its apparent to everyone on the planet that they’re worth nowhere near that.  Could be why sales are down, maybe?

Which brings me to DRM.     Seeing an exec from Sony touting the value of DRM threw me into a little time warp.  Do you all remember this debacle, you know, quite possibly the one event that did more to wreck the recording industry than all of the supposedly illegal downloading in the world?  If you’ve forgotten, back in 2005, Sony spearheaded an effort to covertly place DRM programs on new CD releases that would install software on any Windows machines the CD was placed in without the user’s knowledge.  This software not only affected how the machine played CDs, but it also opened the computer up to malicious attacks from outside entities.  This was so bad that Sony ended up being sued by numerous parties and wound up recalling all of the CDs with that software on it.  Needless to say, when Sony starts talking about DRM being a good thing, be very afraid.  Before this, the music industry actually had some credibility when discussing copy protection, but this scheme unmasked their priorities completely.  There were no longer any illusions that these companies cared at all about their customers’ rights, private property or anything other than keeping a stranglehold on their falling profits.  In the end, in an ironic twist, this DRM software turned out to have been developed using code that violated someone else’s licensing rights.  There may have never been a clearer case of “do as I say, not as I do.”

The publishing industry today is heading toward a situation like the music industry was in 5 or 10 years ago.  We need to be certain not to make the same mistakes they did.  Publisher’s need this guy and Sony’s help like they need a hole in the head.

Published in: on December 16, 2009 at 8:18 pm  Leave a Comment  
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