A real-world e-book conversation, TPM included

(First published on IT World Canada blog)

Author John Degen has posted some fictional conversations between a writer and a reader on his blog (June9, June10). I say it is fictional as it ignores how the relevant technology works, and thus not only the lack of clarity of the relationships between writers and readers but also the fact that there is a technology company as intermediary that separates there from being much of a relationship at all between writers and readers. It depicts some rare moment where all the parties involved have the same understanding of the relationship, likely because this is really just a case of John having a conversation with himself.

This conversation is a good example to use to better understand the technology involved, the relationships, and what is the correct law to govern these types of relationships. It is also a demonstration why the existing anti-circumvention provisions within Bill C-32 require major revision in order to not cause massive unintended consequences that will be harmful to the interests of both the writers and readers John was intending to be writing about.

Before we can dive into John's specific conversations, we need a bit of background. When analyzing electronic books I categorize them into 4 different groups based onthe technical underpinnings of the relationships.

Licensing terms in human readable format

This is the simplest case where the book is made available in some electronic format, and where the licensing terms are included within the text of a book just like they would be in a printed book. We have all seen copyright notices within the first few pages of a book. In this relationship model traditional copyright is being used, and if the recipient of the electronic book does things which are regulated by copyright without permission, they are infringing copyright identically to if they had done these things with a paper book.

Licensing terms in machine readable format (metadata)

This is similar to the human readable format, except that the human reader can make use of technology to help remind them about what permissions they have been given by the copyright holder. This type of metadata can let people know scenarios where they are allowed to share without additional permission such as Creative Commons licensing, and there are even search engines to help people find electronic text which is licensed this way. The relationship is the same in that it is traditional copyright being used, and the technology is being used as an aid for copyright holders to communicate terms to audiences. It is not an enforcement mechanism, but a communications mechanism.

Licensing terms in machine readable format, content encrypted where intended audience holds decryption keys.

In this scenario cryptography has been added to the previous scenario, in order to ensure that only the intended audience can unlock the content. This technical measure protects against access by unauthorized persons, but is not a technical measure that pretends to protect the copyright holder against unauthorized activities carried out by authorized persons. Often both encryption and steganography (digital watermarking) are used in combination such that if content is leaked that it can be traced back to the person who caused the leak, given only the authorized audience member could have unlocked and unlawfully shared that specifically encoded copy of the content. In this case traditional copyright is still what protects the copyright holder, with the technology used both as a tool in electronic commerce to deny third parties access, but also as a mechanism to detect who is responsible for any leaks. The use of digital encryption and personal decryption keys is a useful psychological tool to encourage appropriate behaviour by that audience member.

Licensing terms in machine readable format, content encrypted where technology provider holds decryption keys.

This may appear at first glance to be an incremental change from the previous scenario, but is in fact an entirely different scenario that brings with it entirely different areas of law. It is not traditional copyright law that i sat play with the reader, but a copyright relationship between the copyright holder and the technology platform provider, and separate contractual relationships between the platform provider and readers.

Since the Kobo example that John is using is largely an example of this last scenario, we will concentrate on that relationship. Unlike the first three scenarios where the copyright relationship is with the reader, the copyright relationship in the last scenario is with the technology provider. The copyright holder isn't offering a license to the reader do anything, but instead is licensing the technology provider under specific terms. Once they agree on terms, the content is then encrypted such that it can only be accessed by technology provided by the licensed technology providers. One of the obvious features of this relationship is that the copyright holder is trusting the technology platform provider more than they do their own fans, something I'll have to admit to not understanding.

The first error you may notice from John's chat is when he said, “I guess, since Kobo books are ePub format, the books I bought would be easily transferable to another open device”. He is confusing the issue of the underlying file format (in this case, ePub) and the digital lock whose purpose is to ensure that content is only accessible on the specific licensed platform. Just like it is not possible for there to be non-wet water, it is not possible to have an interoperable platform dependance. In order to have content be interoperable between different platforms, the copyright holders need to use one of the first three scenarios listed above that do not involve platform specific encryption.

The relationship that John the writer has isn't where the complexity is. He had a copyright relationship with the reader in three scenarios, and a copyright relationship with a technology platform in the fourth.

Where the massive confusion comes from is the changed relationship with the reader in that fourth scenario. In the first three scenarios the copyright licensing terms are communicated directly, in human and/or machine readable format, with the reader. While not all readers may have read these licensing terms, they are accessible to them as readers as well as being easily accessible to their lawyer if there is a reason to go to court. The reader can also make their own choices of technology, both hardware and software, according to their own personal interests and convictions. We have several hundreds of years of experience dealing with copyright and possible disagreements with the terms of copyright license agreements.

In the fourth scenario the reader doesn't have a relationship with the writer at all, but a relationship with the technology provider. What the reader can or can not do with that technology, or any content delivered to the reader via that technology, is determined in software authored by or on behalf of the technology platform provider. The reader does not have technology choice beyond “take it or leave it”, given if they want to have access to content delivered through this platform (and increasingly there are exclusive deals being made) they must accept unilaterally whatever is offered by the technology platform provider.

In theory there is a contractual relationship between the technology platform provider and users of that technology. I say in theory, given I suspect very few people purchasing these technologies are aware of the obligations that they have in theory signed on to.

The most important thing to recognize, however, is the relevant law regulating a dispute about the terms of the relationship between the technology provider and the customer. It is not at all a copyright dispute as the audience is not a licensee of the content, but a contractual dispute. It is also not a contractual dispute with a copyright holder, but a contractual dispute with the technology provider — an entirely separate party.

I believe that because the relationships are unclear, serious misunderstandings will occur. I believe it is wrong to simply say “buyer beware”. This is a brand new relationship that I believe the vast majority of proponents do not adequately understand, so it is unreasonable to expect technology consumers to understand.

There are ways to avoid the massive unintended consequences. The first is to not offer any protection for these scenarios under copyright law. The 1996 WIPO treaties are clear in that legal protection for technological measures should be tied to activities that were already infringing under Copyright law. Since Copyright law does not contemplate the concept of restricting “access”, there should clearly be no protection in copyright law for access control technical measures. Access control technical measures are clearly a matter of provinciale-commerce, contract and/or property law.

This would clearly leave the contractual relationships involved in that fourth scenario to provincial contract law, where it belongs. While there are constitutional reasons to be doing this (Hint: BillC-32 may not even be constitutional), it will also ensurethat the right laws and the right courts are being used when dealingwith any disputes that arise from these relationships. With thisunderstanding we can move away from thinking of protecting thesescenarios inappropriately under federal Copyright law, but looking atways of appropriately modernizing provincial e-commerce, contract andproperty laws.

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John brought up many more issue which I wanted to touch on separately. We have strong disagreements when it comes to Bill C-32's anti-circumvention provisions, based on our different understanding of the technology involved and legal implications. I think we are fairly close on other issues.

“I still love the look,feel, smell and heft of physical books”

Yes, I too am a big fan of physical books. I have them all over the house, sometimes purchasing them in addition to electronic versions (text and audio books). There really are types of books which just need to be read in the physical form, and I can't imagine an electronic device replicating that experience.

”That’s a 69% savings over the physical book.”

This is as it should be. When you purchase a physical book, you are buying something that you have some ownership rights to. You can lend it, resell it in a usedbook store, you can write on the pages, you can even – gasp – throwit into a fireplace.

When I give my “I have 4things in my hands” presentation on Protecting property rights in a digital world, I often ask people what they think happens if the tangible medium (physical book, physical CD, etc) doesn'texist and you only downloaded “bits”. The answer, as far as I am concerned (and most lawyers I have spoken to), is that the ”ownership” rights that the customer would normally receive simply don'texist. You have the right to delete the file (destroy it), and might in some circumstances have the right to back it up, but not much else. There really isn't “first sale rights” in the case where no tangible medium was sold.

Given what you are acquiring in a purely digital scenario doesn't have any resale, loaning or other value, then it should be obvious that the price should be lower. I do not, however, believe a majority of people understand this situation. I have had many people want to “loan” or even “re-sell” me something they have downloaded from an e-commerce site, an activity that makes no sense to me.

There is nothing that says that an author (directly or through a technology platform intermediary) can't offer audiences the ability to loan, resell or give digital content away. These things are just not something that is automatically offered to the audience. Copyright holders have and will always be free to slice up the copyright related rights into individual copyright related activities and license each separately, charging more money for those who want to do more things, and less money for those people who want to do less.

“how about standard fair-dealing rights”

Here is one of those conversations I had with Susan Crean in the past. Book writers are in a very different situation than some other copyright holders. It will always be possible for most people to use their eyes and look at one text (no matter whether paper or a device), and type that section in again using a computer or even an Underwood typewriter.

The situation will be different for blind people, but we don't need to focus on that for the moment.

More commonly, this is not at all the same thing with photographs, sound recordings, motion pictures or other multimedia. While it is true one can take aphoto of a photo on the screen, that is not the same thing as being able to retype plain text.

Copyright does not, and can't possibly, regulate all types of creativity in the same way. This is why it is nonsense to suggest that all copyright holders be given ”the same rights”. (don't get me started on the photographic exceptionalism in Bill C-32)

“That’s great for students and teachers – but does that mean MacIntyre gets paid to have his book used in schools, or not?”

Here is what I had to sayabout that section of Bill C-32 in my clause-by-clause notes:

I am not a fan of institution specific exceptions to copyright. I don't believe that provincially chartered educational institutions should receive exemptions that home-schoolers or lifelong learners do not.

I consider section 29.4 through 29.9 of the existing Copyright Act to be a government program, masquerading as copyright, that is paid for on the backs of copyright holders. Public education programs should be paid for out of general revenue, and managed by provincial governments. Inadequate funding is an educational sector issue, and has some market based solutions (IE: Open Accesspublication), and is not a “Copyright” issue.

I personally believe that Fair Dealings should simply have been expanded to have phrases such as “including multiple copies for classroom use” to clarify that educators can step into the shoes of students and do things which the students would be allowed to do alone. With that necessary clarification these sections (and thus the related clauses in the bill) could be repealed.

“Okay… and since I don’t want to do any of those things, I’m cool with that.”

The people who would say this will never circumvent a technical measure for any lawful or unlawful purpose. It is important to remember that the whole reason why some groups claim we need legal protection for these technical measures is because there are disagreements on these terms. These disagreements are of a contractual nature and should be dealt with as a matter of contract law, and thus the requirement for disclosure of these terms will become more clear.

We need to get past the idea that it is O.K. to 'trick' someone into agreeing to something, and then to try to use the full force of excessively strong law against people when they realize they have been tricked. There needs to be a positive obligation on copyright holders and technology platform providers to make clear the relationship they have with their customers, and stop blaming customers or calling them “thieves” when they do not understand or obey unclear and/or unreasonable terms.

“Calm down, calm down, you're not writing a teenage vampire saga here. Doesn't Kobo already know what book I’m reading?”

This is something that somepeople know, but I suspect most people do not. This is a truth that needs to be documented, not incorrectly presumed that it is already understood.

This is something that needsto be worked out over time to ensure that labelling, reasonable contractual terms, and federal and provincial privacy legislation all become in sync. Regardless, the last thing we need to do is confuse the issue and delay moving forward by incorrectly labelling as a ”copyright” issue something that has little-to-nothing to do with copyright.

“What am I, some sort of tech-gadget sucker who needs to get every new thing as soon as it comes out? How many e-readers does one person need?”

Isn't this a question we need to ask of copyright holders, politicians, and the monopolistic and dishonest technology platform suppliers they are currently supporting?

I own a number of devices that would qualify as e-readers, from my home computer, to my OLPC to my Google Nexus One. All of these devices run Free/Libre and Open Source Software, and I am not interested in buying into any of the products or services of vendor-dependant technology platform providers.

The only way I will be purchasing an e-book is if it is offered in one of the first three scenarios, not the last where the content is encrypted with a keythat I am not given.

What if a book author only makes the book available for specific technology platforms? I am left with a few choices.

• Buy the paper version. This works for books, but not for multimedia since a “paper” version of a television series can't exist.

• Buy the platform specific version, and then format shift to work on the technology I use. This is the scenario which the legal protection for technical measures in C-32 is intended to stop.

• Don't buy. This means that I become part of the falling revenue of these industries. Since the models used to allege infringement do not differentiate between this scenario and copyright infringement, I'm still counted as an infringer even when I don't infringe.

So, which should I do? Different people have different ideas on how to resolve this question, so I can only offer my own. John has indicated on his blog that he thinks I should simply not buy if I don't find the terms acceptable.

In the case of e-books, audiobook performances of books, and even music there is enough content available that is platform agnostic that I can just ignore the platform-specific titles. This will mean that some authors/composers and performers will be receiving less money than they might otherwise, but that it their own choice to not accept my money. I'm a big fan of free markets, and just hope these authors and performers realize it is their own bad choices and not infringement that are the cause of their problems. If some authors or performers go out of business because of these mistakes, I consider that to have been their own choice.

These copyright holders need to learn that the claims of the technology providers that these technology platforms can reduce copyright infringement is snake-oil. Anyone who understands the science behind these technologies will know that they have no impact on people who wish to infringe copyright, other than possibly providing incentive to infringe for people who otherwise would not infringe. The claims that this will reduce copyright infringement are claims made by technology companies to copyright holders who do not have adequate technical knowledge to recognize that the claims are false. These technology providers are seeking their own benefit, increased sales of their brands of technology relative to competitors, to the detriment of sales to copyright holders.

In the case of movies and television, there is very little content available that isn't platform specific. These technical measures are so prevalent that few even recognize that they exist at all, and I doubt many copyright holders are making deliberate informed choices about the use of these technologies.

If I want to purchase previously aired television shows, there is no option that isn't platform specific (this includes DVD's which are encrypted using DVD CCA controlled keys). In this case I have and will continue to feel justified in paying for content and then format shifting. I am aware that my format shifting is illegal under current law, and will still be under C-32 because of the TPM. Since I'm going to be counted in the statistics as an infringer no matter what I do, I am going to do what I consider to be the right thing and pay for and enjoy copyrighted content. In this case I do not consider my actions to be wrong, but consider the law to be wrong.

It would be nice to trust that these problems would work themselves out, but this is only possible if copyright holders and policy makers take the time to understand real-world technology and the new relationships being contemplated. As long as they believe that infringement is the greatest impact on the bottom line, and that misunderstood and misapplied technical measures aren't a concern, they will continue to make bad business decisions and bad laws.

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Russell McOrmond is a self employed consultant,policy coordinator for CLUE:Canada's Association for Free/Libre and Open Source Software,co-coordinator for Getting Open Source Logic INto Governments (GOSLING),and host for DigitalCopyright Canada.

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