Is stripping DRM from ebooks actually illegal in the U.S.?

[MisterOJ]

So for the past few days, I've been reading a bit about DRM with regards to ebooks and the whole legality of it.

Now, I am aware of the DMCA and from what I have read, it appears to make the stripping of DRM illegal, but the law is also poorly drafted and no one has ever actually been taken to court because they have stripped off DRM.

People have been taken to court because they have stripped DRM and illegally distributed electronic media - but never for stripping DRM for personal use of an ebook.

We don't actually know what the courts say about this law, since it has never been contested. So my question is: If a law is basically unproven and considered by many to be unclear - is the act that it attempts to criminalize actually illegal until some sort of precedence is set?

[Wilbur]

It depends where you would try such a case. In District 9 and possibly 2, you would find that the federal judge would have the Disney worldview that all intellectual property is sacrosanct to the owner of the copyright. In other Districts with less influence, it might go the other way.

In a purely practical sense, however, I find that DRMs create such an enormous hassle that the digital media that DRMs purport to protect become unusable.

For instance, my daughter wants to read a particular library ebook on her Nook. The public library system only loans me a DRM file, which I must use to download open the actual ebook using an Adobe application authorized to my computer. Then I must sideload it to the Nook, where about 10% of the time the authorization code fails to work, and about 50% of the time the Nook indicates that the library ebook has already been returned. About 40% of the time the ebook actually becomes available to read, and this after a long lead time of fooling about with this file and that application and this authorization.

Contrast that with the same library system that lends DRM-free MP3 files for audiobooks. These download directly to my MP3 device as long as it is connected to the library computer, and I listen to 100% of them immediately, about three minutes after selecting the book.

Thus you can see why people curse DRMs and strip them without any pangs of conscience.

[polishgenius]

e-book DRMs are an absolute disgrace. People complain enough about the ones on games and too right they aren't clever, but can you imagine if games stores tried to prevent/make it difficult for you to play games that you got from a different store than the one you got the console in? Coz that's essentially how it manifests itself in my experience.

[maarsen]

It depends where you would try such a case. In District 9 and possibly 2, you would find that the federal judge would have the Disney worldview that all intellectual property is sacrosanct to the owner of the copyright. In other Districts with less influence, it might go the other way.

In a purely practical sense, however, I find that DRMs create such an enormous hassle that the digital media that DRMs purport to protect become unusable.

For instance, my daughter wants to read a particular library ebook on her Nook. The public library system only loans me a DRM file, which I must use to download open the actual ebook using an Adobe application authorized to my computer. Then I must sideload it to the Nook, where about 10% of the time the authorization code fails to work, and about 50% of the time the Nook indicates that the library ebook has already been returned. About 40% of the time the ebook actually becomes available to read, and this after a long lead time of fooling about with this file and that application and this authorization.

Contrast that with the same library system that lends DRM-free MP3 files for audiobooks. These download directly to my MP3 device as long as it is connected to the library computer, and I listen to 100% of them immediately, about three minutes after selecting the book.

Thus you can see why people curse DRMs and strip them without any pangs of conscience.

Buy a used paper book, read it lend it out to friends and acquaintances, and become a scofflaw while skipping all the intervening steps.

[Ser Scot A Ellison]

There is nothing illegal about loaning a book. No new copy is made when a book is loaned.

[Anatúrinbor]

What if I reprint the book and give to a friend?

[Ser Scot A Ellison]

TGR,

You've made a new copy... what do you think?

[Anatúrinbor]

There is nothing illegal about loaning a book. No new copy is made when a book is loaned.

Isn't the problem with illegal downloads/distribution (as argued in the other thread) is that you're 'stealing' from the author the money that would've been paid if the other person had actually bought the book? How come that doesn't apply to loaning a book to a friend?

TGR,

You've made a new copy... what do you think?

Yeah, but the end result is that your friend read the book without paying. I don't see a big difference.

[Ser Scot A Ellison]

TGR,

Rights to property are not unitary or automatically universally alienable. When an author sells you a copy of their work they retain the right to make new copies. That right is not sold to you when you buy the book. Loaning a book makes no new copy. There is no violation of the author's retained right. Not so when you make a digital copy and give it to your friend. You've made a new copy and that is a violation of the author's retained right.

The result is different because when a copy is loaned the person loaning is not taking advantage of a property right they did not purchase.

[MisterOJ]

Scot,

Rights to property are not unitary or automatically universally alienable. When an author sells you a copy of their work they retain the right to make new copies. That right is not sold to you when you buy the book. Loaning a book makes no new copy. There is no violation of the author's retained right. Not so when you make a digital copy and give it to your friend. You've made a new copy and that is a violation of the author's retained right.

The result is different because when a copy is loaned the person loaning is not taking advantage of a property right they did not purchase.

So a couple years ago, Nightshade Publishing did a giveaway and I was one of the recipients of three free ebooks - all relatively new releases. They emailed me digital copies of them - completely DRM free. I copied the three books from my email to my PC desktop. I then connected my Nook to my PC and made another copy on there.

I made copies of the free books I was given. These books are still in print and subject to copyright today. Did I violate copyright law when I made these copies?

[Ser Scot A Ellison]

Mr.OJ,

It depends on the liscence under which those copies were given to you. If you uploaded your copies to a torrent site for anyonne to copy you'd pretty clearly be in violation. However, if the license given to you allows limited copies, probably not.

[Kat]

e-book DRMs are an absolute disgrace. People complain enough about the ones on games and too right they aren't clever, but can you imagine if games stores tried to prevent/make it difficult for you to play games that you got from a different store than the one you got the console in? Coz that's essentially how it manifests itself in my experience.

That's essentially why I began stripping the DRM from the ebooks I buy. Other than this then allowing me to replace the default cover art with the same one that the paper copy has, I also don't really trust the platform I bought into and I don't like the idea of this file only being readable by one store's reader. Music is readable by different types of programs; I don't want to lose access to my books if the platform I'm currently attached to goes under, which is fairly likely in the next couple years. Plus now Adobe is playing hardball with their DRM, which annoys me to the point where I might switch to Kindle just because Adobe's move is so disrespectful to current device owners. That would necessitate converting the format of my entire e-library. At no point do I have a beef with publishers or authors receiving their fair share; it's only the others (B&N and Adobe) I don't trust.

[MisterOJ]

Mr.OJ,

It depends on the liscence under which those copies were given to you. If you uploaded your copies to a torrent site for anyonne to copy you'd pretty clearly be in violation. However, if the license given to you allows limited copies, probably not.

There is no license. At least, not anymore. I was never aware of one. And the company that gave me the free ebooks, Night Shade Publishing, has since gone out of business and their copyrights were purchased by another publisher. So, I am sure any license I had with them is now null and void. Am I breaking the law by even possessing these books still?

That's essentially why I began stripping the DRM from the ebooks I buy. Other than this then allowing me to replace the default cover art with the same one that the paper copy has, I also don't really trust the platform I bought into and I don't like the idea of this file only being readable by one store's reader. Music is readable by different types of programs; I don't want to lose access to my books if the platform I'm currently attached to goes under, which is fairly likely in the next couple years. Plus now Adobe is playing hardball with their DRM, which annoys me to the point where I might switch to Kindle just because Adobe's move is so disrespectful to current device owners. That would necessitate converting the format of my entire e-library. At no point do I have a beef with publishers or authors receiving their fair share; it's only the others (B&N and Adobe) I don't trust.

And that, Kat, is the reason why many are questioning the illegality of stripping DRM from ebooks.

With music, the American courts have ruled that it is perfectly legal to "format shift" your media - which basically means take it from one format (CDs) and then shift it to another (MP3) in order to listent to it on an MP3 player (or smart phone or whatever) instead of having to use a CD player. Perfectly legal. And if there is DRM on the CD, it's also legal to circumvent that in order to format shift.

Now, the problem with ebooks is that you can't format shift - from .epub to whatever you need read on a Kindle - without breaking the DRM. So, if we go by court rulings with regard to music files, it's perfectly legal to strip your DRM to read your Nook books on a Kindle. Or vice versa.

[Inigima]

I think it is technically illegal but a lot of people do it and no one cares much.

[MisterOJ]

To illustrate my point to myself, I just bought Sand by Hugh Howey.

For the time being, the book is only available through Amazon. According to the author, all other book stores (inluding Barnes & Noble) will begin selling it at the end of next month. I decided I didn't want to be patient anymore though. So, I bought the ebook from Amazon, converted the file type to an epub and loaded it onto my Nook. I'll be reading it tonight.

Technically, I may have violated a law by doing so. But, I doubt it.

[Ser Scot A Ellison]

Mr.OJ,

I think it may be a violation but it is a de minimus one. Uploading to a torrent site is a serious violation in my opinion. People who do that should be held liable.

[David Selig]

I strip the DRM of every book I buy, even if it's in a format I can use on my current ebook reader. Then I can format it the way I want. If I don't do that, I can't fix basic stuff like justifying the text (extremely easy to do with Calibre and I find non-justified text very annoying on a reader). DRM as usual hurts only the legal customers, even more so here than in other media, the whole stuff about Amazon books only working on Kindle and their competitors epub files not working on Kindle is a travesty. Sorry, I am not paying more for the book at Amazon if it's cheaper somewhere just because I happen to have a Kindle (or vice versa) - I buy from where it's cheapest, strip the DRM, convert it to another format if necessary and don't feel the least bit guilty about it.

[Bolivar]

I'm not your lawyer and it would be unreasonable for you to rely on anything I say as legal advice.

BUT!

A central part of any legal claim is harm or damages. A right holder could prove that you removed DRM or made personal copies for your own enjoyment but what could they prove to be the damages they suffered? Its not worth their time, maybe they could get nominal damages of $1 to prove a point but they probably couldn't get further than that.

Maybe you're asking the more fun question of whether there's liability at all, in which case, like many legal questions, it depends.

[Inigima]

To illustrate my point to myself, I just bought Sand by Hugh Howey.

For the time being, the book is only available through Amazon. According to the author, all other book stores (inluding Barnes & Noble) will begin selling it at the end of next month. I decided I didn't want to be patient anymore though. So, I bought the ebook from Amazon, converted the file type to an epub and loaded it onto my Nook. I'll be reading it tonight.

Technically, I may have violated a law by doing so. But, I doubt it.

Yes, you broke the DRM. This is illegal under the DMCA, even if the purpose is legitimate. In practice no one gives a shit. It's the definition of a victimless crime.

This is but one way in which the DMCA is a piece of shit.

[MisterOJ]

Yes, you broke the DRM. This is illegal under the DMCA, even if the purpose is legitimate. In practice no one gives a shit. It's the definition of a victimless crime.

This is but one way in which the DMCA is a piece of shit.

Right, and many people agree that the DMCA is a piece of shit. Lots of people contend that it would never hold up in court. No one has ever been sued over stripping DRM off an ebook because of this. They likely never will.

Which leads back to my original question. If there is a law on the books that makes something "illegal" but many people think it's a terrible law - and it's such a terrible law that the folks that stand to gain from it (booksellers) will never take anyone to court over it - is the act it seeks to criminalize actually an illegal act?