post for/from 3/15/06

Shannon Hollender
Prof. Malesh
Draft 2 of Controv. Ppr.
Due: 3/15/06 (12am)
E-books and the Legal Factors

The notion that the internet is a very valuable tool for so many endeavors is generally accepted by the world. It is a device, a concept in practice which affords a large portion of the world the chance to express themselves, to hear, to be heard and to learn. The famous song: “It’s a small world after all” is one which comes to mind when thinking of the concept behind the internet. “What is this concept?” you ask; it is this: The internet brings so many that are so far apart to each other’s fingertips. The sheer size of the net and its all inclusive nature allows people who would not normally be able to interact to communicate information, knowledge and to share with one another what they normally would not be able to share. Convenience is the recognized goal and the internet has made it convenient for all who can use it to find and experience a plethora of new ideas. Writers and the literary community have seized this opportunity (the internet) as their own to share with the world their words, works, names, and ideas. This brings to light the concept at hand. The notion of the e-book is an electronic copy of a work of literature in a form that is easily and quickly shared with the masses. Its digital form is one that facilitates convenience though it often needs to be read on a special device or with a special program on one’s computer. The convenience of them has led to the wide-spread utilization of e-books and the subsequent debate is seemingly a no-brainer, seemingly. For those who aren’t entirely up to date on this closet issue let me here try to present you with a few of the facts concerned within. The benefits of the e-book are that a writer who would not normally be able to publish or distribute their work may do so. The other side of the coin is that with this convenient distribution is that many more writers are in danger of having their works plagiarized. This, thereby, is the debate at hand: E-Books; are they good or are they bad; for who and why?
The literary world is comprised of writers / editors, publishing houses and of course the customers. The readers, writers, and those pesky middle-men the publishers will all be considered and consulted here respectfully. The readers (or customers) are the ones who are at the center of the controversy in this community. As was said before this is by using e-books with both good and malicious intent, this will be addressed more thoroughly in later, more appropriate sections of this paper, but for a brief over view now; the community is concerned with the sharing of ideas, stories and knowledge in the form of e-books via illegal copies or illegally obtained means.
The majority of the people who are considered part of the literary community are interested in either protecting the right of the consumer to obtain and re-distribute works or in preventing the free and unregulated distribution of e-books and their respective works. Students for example read for the acquisition of knowledge, write for the distribution of knowledge – though usually for their professor’s eyes in order to acquire a good grade, and from time to time they copy and distribute their works and the works of others for their peers to review. And in the midst of engaging in these very activities, they are often engaging in the thick of the controversy addressed herein. As one can discern, this controversy affects more people than realize it. Everyone who types their ideas into digital form is potentially affected by this issue.
According to the US Government and law, it is illegal to copy or distribute works of any sort to others without clear consent of the author or without paying said author compensation for use of their works. Keeping this in mind, it seems, is the only way of wading through the emotions and tensions that arise from this heated debate.
With the advent of computers and their software technologies there has been a considerable amount of justifiable concern surrounding the realm of copyright, infringement, and piracy or plagiarism. In response to this hot topic of late, a law was passed in 1998 called the Digital Millennium Copyright Act. The DMCA in a nut shell serves, to wall in and protect copyright and to punish “those who seek to breach that protection.” –Scarlet Pruitt digital correspondent for CNN. This means that companies and publishers are allowed to put so-called “locks” on the books they distribute allowing them only to be read by certain corresponding programs and in certain ways. Since the public still wants the digital books to be available for their convenience and leisure, companies such as Adobe have invested in putting locks on these digital books to prevent copyright infringement. This means that Adobe e-books are only readable by Adobe e-book reader programs. Producing and subsequently distributing any program which allows one to retrieve the text from an e-book and re-distribute it without the locks thereby has thereby become illegal. Enter now into the debate a Russian who did just that:
“Dmitry Sklyarov was arrested in Las Vegas on July 16, 2001, and charged with trafficking in, and offering to the public, a software program that could circumvent technological protections on copyrighted material, under section 1201(b)(1)(A) of the U.S. Copyright Act, which was made law by the 1998 Digital Millennium Copyright Act (the DMCA).” –Electronic Frontier Foundation
He sold only seven (7) copies of the program in the US and one of those was bought by Adobe, the corporation whose version of the e-book encoder he had cracked. Subsequently Adobe filed a complaint and had Sklyarov incarcerated.
What this means is: That digital rights need to be managed reasonably which is and ha been the case for hard copied works. Aside from a person photocopying every page, publishers have previously had unconditional rights and control over the sales and distribution of copyrighted works. With the advent of digital means Digital Rights Management (DRM) has become a hot button issue in that it has become “trivially easy to copy, [anything] without paying for [it]” –Brad Templeton, E-Book publisher and correspondent.
This debate as it is perceived by the outside world is one which really has no bearing on life and the pursuit of happiness. If people are going to illegally distribute books or anything else for that matter, they’ll do it, and there really is no way of stopping them in this case because there really is no way of proving it. People don’t care. And that fact is the big problem underneath all of this, a problem which has thus-far stumped the majority of the literary world and left free distribution unchecked. However the publishers are researching and problem-solving and investing heavily (an estimated 3 billion per year) into this problem of unchecked distribution in hopes of finding another answer relatively soon. This so they may retain a firm grasp on large amounts of profits which are otherwise being withheld from them. The problem, in the meantime still remains, authors are still publishing and still not getting paid much for it; and the public is still reading and frequently reproducing and re-distributing much of the work being put out there.
The issue of the reproduction of copyrighted materials is, logically, the best place to begin in order to understand the different stand-points, controversies and opinions at the center of this e-books debate. It is ultimately the people who are shaping this debate and how it will be handled. They are the ones who are infringing the copyrights of others and who are making the laws to disrupt these activities necessary. They should not redistribute a book they purchase to the population for their own profits or devices but they still do. When Stephen King published his book “Riding the Bullet” in an e-book only version in 2000, according to Gigalaw, even though he had it selling for only $2.50 per copy, within hours it had been unlocked and was being distributed illegally on several sites for free. This attests to the tendency of people to get away with things when and where they can. It is this very nature that requires laws be put into place and some form of control be formulated. The publishers say this: that pirating works takes no effort, no money and no time. As these issues add to the fact that pirating is inherently wrong, what the publishers and distributors are concerned with instead of protecting the works themselves is how this activity deprives the pockets of legally backed corporations and how they should go about ensuring the shut-down of any site which illegally distributes copies of these works. These distributors don’t care about the authors’ compensation or about copyright, unless it applies to their legal right to compensation. All they see is distribution and profit margin. All they seem to say is that it is wrong to reproduce any literary work for any reason without giving due recompense for the work to the owner of the rights of the work. This concept was made law by the DMCA and serves to further the issue down the path that won’t fix it. What needs to be done is there needs to be better ways of controlling the works and materials themselves.
Figuring out how to control the reproduction and distribution of e-books is therefore the next logical issue to address. All the parties involved in this debate seem to have issues they want addressed, be they freedom issues or just an annoying and often sassy form of “do it my way” bossiness.
The authors say that they wrote the book, and if it is getting publicity and distribution; they believe they should be justly compensated for it.
According to the distributors, if a person didn’t pay for the work, they shouldn’t have it. More often than not, however, the authors disagree and will pursue publishing their works in these electronic forms and distributing them freely in order to obtain publicity. Such is the nature of such a competitive market. For instance, according to Bob Pimm of Gigalaw, e-books had been in distribution for a decade and were generally unheard of until Stephen King Published an e-book only story in 2000. You could say that this publication is what set the ball in motion by bringing to light the problems and controversies with digital rights management. Control measures were therefore put into place, encryption codes were made more complex, and the publishers, believing it is wrong to circumvent control measures, placed on literary works, locks and programming restrictions which allow for e-books to be read by only certain programs. The issue raised here is that a person who purchases a book legally has a right to do with that book what they please, this is the purpose of the fair use clause in laws concerning copyright.
Due to this belief on behalf of the publishers they further their position by postulating that it is therefore wrong to possess, develop or sell any digital tool which allows for the circumvention of these locks and programming restrictions. They poured so much effort into convincing others of this belief that when the DMCA made it law that getting around the locks on e-books was a punishable offense, two years before the issue officially came to a head, it was the case that “so far no other country in the world has a copyright law as outrageous and restrictive […] In fact, in [other countries] it's illegal to design a scheme that prevents private citizens from making copies of media for their own use.” This according to Neil McAllister of SFGate.com the online version of the San Francisco Chronicle newspaper. Moreover, even in our own laws there is contradiction on this issue. The fair use clause of the copyright act or more precisely Title 17 Chapter 1 states that in our country as well it is the right of the citizen to “the fair use of a copyrighted work, including such use by reproduction in copies.”
The Fair Use Clause seems to be the double-edged sword in this debate as it consistently imposes limits on what control measures can do while at the same time it practically requires an author to give up their right to their work to control measures in the form of publishers and or distributors. Due to this provision in the laws the authors all seem to hold the general belief that if they were paid for their work; unfortunate as it is, they no longer legally have any right to control what is done with it unless they want to distribute it themselves. This seems like a viable option until one tries and finds it nearly impossible to publish without the support and backing of a large, legally free corporation. Legally speaking this is what they must believe or they are not going to distribute at all. According to Bob Pimm of Gigalaw, a lawyer and a journalist, “The National Writer's Union publishes contracts for electronic publication that seek to protect author's rights [but even these reflect] the decree that publishers of collective works are not permitted to revise an author's individually copyrighted work without receiving a license or express transfer of rights from the author.” This means that even is an author wants their local paper to publish something they wrote, by law the paper must purchase the rights to the piece and the author must sell it.
The consumers seem to want to share a book they own without all this legal requirements and mumbo-jumbo attached to it. And when it comes to books in digital form or not, by law, they have every right to do so. They paid for their copy, it has become, according to the fair use clause as cited by Cornell Law School, their right to use and distribute the work whether for commercial or educational purposes. Furthermore where digital information is concerned the people also have right to keep a back-up copy in digital form. No matter where they choose to keep this copy. So for a clearer view of the discrepancy, according to the DMCA it is illegal to circumvent control measures designed to prevent a person from freely using and distributing a book that person owns but according to the fair use clause in the older law Title 17, it is the legal right of the owner of the material to do with it what they please by “fair use [provided they] consider […] the effect of the use upon the potential market for or value of the copyrighted work.” - US CODE: Title 17,107
My opinion on the matter is this: That I am undecided about whom to side with. I do, however, cite something that I ran across in doing my research as being so very true and as being the summation of the debate in its entirety. Perhaps this may be the answer to the problem, perhaps it is delusional, but I believe it is true.
“The publishers of ebooks need to put fewer barriers in front of the reader, not more, so it's bemusing that some have put such a strong focus on DRM. Those who release books in open formats that can be read anywhere do face more illicit copying than they would find in the paper world, but in many cases they also get more sales.” –Brad Templeton
In summary: the debate rests heavily right where it began; the internet is a vast and immensely powerful too. With such great power comes great responsibility and most of the boobs that use the internet, especially in this area, are not responsible enough to not break the law. Especially when they can turn a profit from it somehow.





Bibliography:

“Limitations and Exceptions to Copyright and Neighbouring Rights in the Digital Environment: An International Library Perspective” IFLA, Committee on Copyright and Other Legal Matters (CLM) 22 Feb. 2006 . February 2002
“Petition to Abolish the Digital Millenium Copyright Act” 22 Feb. 2006 .
"US CODE: Title 17,107. Limitations on exclusive rights: Fair use." U.S. Code Collection. Cornell Law School, Legal Information Institute. 5 Mar. 2006 .
“US v. ElcomSoft & Sklyarov FAQ” EFF 27 Feb. 2006 . February 2002
Dinsmore, Alan; Sajka, Janina; Schroeder, Paul; “Comments to Library of Congress, 2003: AFB Seeks Exemption for Literary Works” 22 Feb. 2006 .
Eamonn Neylon “First Steps in an Information Commerce Economy Digital Rights Management in the Emerging E-Book Environment” D-Lib Magazine Volume 7 Number 1 27 Feb. 2006 . January 2001
Hilden, Julie; “The First Ammendment Issues Raised by the Troubling Prosecution of E-Book Hacker Dmitry Sklyarov” 23 Feb. 2006 .
Hodes, Laura, “Adobe's reversal of its Position on the "Hacker" That Cracked its E-Books: Proof That The Digital Millenium Copyright Act Needs To Change” 27 Feb. 2006 . August 2001
Jay, S; “How To Protect Your e-books From Piracy And Copyright Infringement!” 22 Feb. 2006 .
Lloyd, Rich; “Electronic Rights: What is a Book?” 22 Feb. 2006 . 2002
McAllister, Neil; “Thursday, Civil Rights or Copyrights? Hack an eBook, Go to Jail” 22 Feb. 2006 . August 2, 2001
McCullagh, Declan; “The Struggle over Intellectual Property” 22 Feb. 2006 . August 6, 2001
Moohr, Geraldine; “The Crime of Copyright Infringement: An Inquiry Based on Morality, Harm, and Criminal Theory” 22 Feb. 2006 .
Pimm, Bob; “Authors' Rights in the E-Book Revolution” 22 Feb. 2006 . October 2000
Pruitt, Scarlet; “Four years on, digital copyright law revs up”, 22 Feb. 2006 . February 2002
Templeton, Brad; “An E-Book Publisher on why the U.S. Attorney should free Dmitry Sklyarov”, 22 Feb. 2006 . December 2005