MomentumBlogEbooks and Ownership: Do You Own Your Ebooks?

Ebooks and Ownership: Do You Own Your Ebooks?

Posted October 30, 2012 by

An email from an acquaintance today in light of the Amazon library deletion scandal caused me to write a long rant about digital rights management (DRM) and ebooks and copyright so I thought I’d share some of it below.

It amazes me sometimes that we’re still all talking about DRM and ebooks. I feel like it’s a conversation we’ve been having for a very long time, and made very little progress with. But ultimately that’s the nature of an industry undergoing such huge changes. Protecting the legal rights of authors and readers while also trying to run a business and not violate any licensing agreements can be a nightmare for even the most informed publishing functionary – to an outsider I think it must look like complete and utter nonsense.

There are different issues at work here. One is the legal rights of the reader/consumer and the other is the technology used to restrict those rights.

When it comes to legal rights, most publishers aren’t selling the ebook file itself – they sell a license to use it under certain circumstances. They give the reader the file – but the reader doesn’t ‘own’ this file. This is pretty standard for selling digital content – if you sold the file with with no restrictions then the person who bought it could potentially copy and send it to thousands of people with no legal recourse for the copyright owner (the author, not the publisher). I don’t know of any publisher of any digital content that sells digital files without restrictions – whether they’re using DRM or not.

The second issue is a technological one. Most publishers sell their content with DRM, which on top of the legal restrictions also physically restricts readers from transferring content to other readers or between devices by using encryption software. This software is usually implemented by the retailer (Amazon, Apple or whoever) at the behest of the publisher. Some publishers, like Momentum, have asked retailers not to include DRM on our files. This isn’t because we think users should be able to own the file and use it without restrictions, but because we believe that a reader who buys an ebook should be able to transfer that book between devices without the technological difficulty inherent in using encryption technology. Basically it’s extremely frustrating for a reader who has legitimately purchased a book to transfer that book between multiple devices if it has DRM on it – and that’s why we removed it. We wanted our readers to be able to buy a book from Amazon and read it on their Kobo reader if they wanted to – and now they can.

To be clear – Momentum is still technically selling a license for our books, not the files themselves – we just don’t physically restrict readers from transferring their ebooks between devices. The reason for this is basically down to the nature of digital content – it isn’t some kind of Orwellian urge to control what readers do with their reading material. If we ‘owned’ a digital file in the sense that most of us ‘own’ paper books, by current laws we would be able to do whatever they wanted with it (including selling copies for a profit), which would in most cases violate the contract under which retailers sell ebooks and the rights publishers license from authors. Authors ultimately own the copyright for their content and license it to publishers who can then sub-license it to readers.

In the Amazon case mentioned above, the reader violated Amazon’s terms and conditions in some way that Amazon hasn’t made clear to anyone. As a result, Amazon closed their account, which means they no longer had access to the encrypted files that were stored on their device. If that reader had bought any of Momentum’s ebooks, this wouldn’t have been a problem, as they could have just moved their ebooks to a different device. As far as I know, without DRM Amazon cannot yank a book from someone’s device – but I might be wrong. At any rate, because all of the reader’s books had DRM on them, they lost their entire library (albeit temporarily – Amazon has restored the reader’s account as far as I know).

As much as I think this is a horrible situation for the reader – and this is precisely why we dropped DRM from our books at Momentum – these stories do seem to crop up intermittently and don’t seem to have any real effect on the ebook market. Ultimately the convenience of digital reading outweighs most people’s concerns about it. I’d love it if more readers cared about this stuff as it’s something I care about, and we’ve made Momentum a more reader-friendly place as a result. However, my general impression is that for the most part Amazon’s ecosystem works pretty well and these situations tend to be anomalies or bureaucratic oversights rather than some kind of concerted effort to defraud readers.

Having said that, I’m curious about what you think. Has Momentum’s decision caused you to buy more books from us? Do you seek out DRM-free ebooks consciously? Had you even heard about the story mentioned above? Sound off in the comments and let us know.

 

Please Note: A previous version of this post claimed that selling digital files gave the purchaser the right to on-sell the ebook. As commenter Iain points out below, copyright law should already adequately cover this situation. See my response below for clarification on this issue.

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100 Ways to Write Badly Well by Joel Stickley is a hilarious guide to the art of awful writing. Remember – if a thing’s worth doing badly, it’s worth doing badly well. Available DRM-free for $2.99.

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8 Comments
  • Iain

    “If we ‘owned’ a digital file in the sense that most of us ‘own’ paper books, by current laws we would be able to do whatever they wanted with it (including selling copies for a profit)”

    I’m pretty sure that’s not right. You aren’t allowed, by copyright law, to make copies of a physical book you “own”. You _are_ allowed to sell the single copy you bought though. (although the supreme court in the US is currently hearing a case involving whether textbook publishers re allowed to restrict your right to do that)

    Copyright still applies to digital files, and that’s the legal tool authors (and musicians and artists and photographers and…) can use to protect their works, regardless of whether that’s a digital file, or words printed on dead trees (or elephant statues carver out of granite).

    • http://www.momentumbooks.com.au/ Joel Naoum

      That’s a good point. I’ll update the post to clarify what I mean. Ultimately I think current copyright laws do not adequately cover digital content. It’s illegal for you to reproduce or copy a paper book, but technically every time you transfer a digital file from one device to another you are copying it – what is the legality of this under copyright law? This creates a great deal of legal grey area. If you sell a copy of a digital file and delete your own, is that acceptable? Not to mention the fact that if you copy the file from one device to another, that would be infringing copyright. It also gets complicated as different sets of copyright laws apply in different territories, and digital content has a habit of traversing territorial boundaries. Licensing digital content makes this murky area a lot clearer for rights owners and for readers.

  • http://twitter.com/OptimusSpime Optimus Spime

    No – because I think only extremist digerati really give a rats about DRM or transferring a file from one device to another. I think their “concern” for this practice is more about weakening the rights of creators than enhancing the rights of consumers. The people pushing hardest for this are the ones that want to get the benfit of selling cheap copied hardware without putting in the hard work setting up things like book stores and rights agreements with publishers. Get someone like Apple to do all the work building a catalog of stuff, negotiating with publishers (Apple does this so it can sell its devices) and then rant and rave and say what a travesty it is when someone who has bought in to the Apple ecosystem can’t use “their” music on a Google device.

    For the most parts the Anti-DRM arguments lead back to a couple of thinkers – Doctorow, Lessig and so on who directly or indirectly are funded by people who don’t create content, but who profit by selling machines on which to create content. There’s a book called “Free Ride” which details explicitly how Google has lobbied to have the rights of content authors stripped away. Momentum books has just fallen into that cycle of spin – believing that they’ve done something for their readers – when all they are really doing is enriching a bunch of Silicon Valley capitalists who believe that selling diodes is more important than rewarding the producers of culture.

    • BernieTB

      You do realise that by and large it’s in a companies best interest to not piss off their customers? Not having DRM allows customers to choose the hardware they like best and fill it with the content they would like to consume – I believe they call that “competition”.

      Aslo, I’m pretty damn certain that Doctorow is not “funded by people who don’t create content” as he’s written a number of books from which he derives an income as they’re sold for actual real world money.

    • http://www.momentumbooks.com.au/ Joel Naoum

      Seeing as we haven’t seen any increase in piracy as a result of dropping DRM I’m not sure how you can spin this as anti-author.

    • http://twitter.com/mrconnorobrien Connor Tomas O’Brien

      It’s very difficult for me to join the dots here. I’d suggest taking a look at the music industry: DRM has been dropped across most of the large online music stores, and there was no corresponding increase in piracy. In fact, the dumping of DRM led to consumers feeling more comfortable about purchasing music online without needing to worry about device compatibility.

      The publishing industry is following the same path, but lagging by a few years, which makes sense as the ebook economy is younger. I would find it pretty odd if DRM stuck for ebooks while being dropped for all other forms of digital content.

      You may want to separate Google’s book scanning and other creator-hostile endeavours from small publishers deciding to drop DRM: they’re not the same thing at all.

  • Dan

    I had come across that Amazon story before. I’ve only ever had good customer service from them, but given I was looking to get a Kindle, this story put me off a little. Good to hear the customer got access to their books back. However, that’s certainly now an issue for me. I’m not too fussed about transferring between devices, but losing access to books I’ve already paid for? It could be that’s a dealbreaker (ladies).

    As an aspiring author, I’d also have to say it’s an issue that would possibly impact where I submit for publication. I like the idea of DRM-free ebooks as an author, because I like the idea as a reader. Plus I see writing these days as being far less about trying to nail the rare multi-million dollar book deal and more about connecting with as many readers as possible. So the piracy aspect doesn’t really bother me either (plus I’ve heard there is no evidence to back up claims it gets worse with DRM-free ebooks anyway).

    That said, if Amazon get in touch with a suitcase full of cash, screw you all.

  • http://twitter.com/stevenson_keith keithstevenson

    the other problem with DRN locked files is you can’t change the format and despite what optimus says I think that is of more concern to normal consumers than just ‘digerati’. DRM locked files may become the betamax tape of the ereader age.