Pointing users to drm stripping software isn't copyright infringment.

[taustin]

Originally Posted by JoeD

Although in this case I still think that's a stretch as calibre in and of itself is not a DRM removal tool.

That's nitpicking that judges and juries tend to view as an attempt to distract from the real issues[1]. There is a DRM removal tool that is used with Calibre, and the defendant pointed people to it. That is the relevant data. Since neither Kovid nor Alf were litigants the details don't matter.

[1]"If the facts are on your side, pound the facts into the table. If the law is on your side, pound the law into the table. If neither the facts nor the law are on your side, pound the table."

[leebase]

Originally Posted by rixte

Nice! Always glad when it's recognized (and ruled) that removal of DRM isn't copyright infringement, and that neither is talking about it.

In the U.S., stripping the DRM isn't "violating copyright" but it does violate the DCMA law.

[ApK]

Originally Posted by leebase

In the U.S., stripping the DRM isn't "violating copyright" but it does violate the DCMA law.

Courts have disagreed on that.
The 5th circuit court said the DRM circumvention provision is only triggered if there is a copyright infringement involved.

I think this is as it should be, because the Digital Millennium Copyright Act is supposed to be concerned with...wait for it...copyright!

[taustin]

Originally Posted by leebase

In the U.S., stripping the DRM isn't "violating copyright" but it does violate the DCMA law.

That is an often repeated mantra. It refers to Title 17, Chapter 12, § 1201, (a)(1)(A) and (a)(1)(C), which provides for stripping DRM only for classes of protected work determined by the Library of Congress, which do not currently included ebooks.

However, paragraph (f)(1) and (f)(2) specifically allows for stripping DRM (from a work that you have lawfully obtained) for purposes of "identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs."

In other words, for purposes of converting your Kindle book to run on your nook reader.

And (f)(3) specifically allows the sharing of whatever information is needed to achieve that interoperability.

So it's not so clear-cut a matter as many would have us believe. There is, in fact, a very large grey area in the matter, that can only be resolved by the courts, and the case law just isn't there yet.

(There is a lot of case law relating to software, however, that seem likely to be used as a guide - and it favors the rights of the end user to strip any technological protections from data files and even programs themselves for purposes of moving stuff they've paid for from one computer to another. So it'd be a surprise, though not a big one these days, if the "you can't strip DRM in order to make local backups" camp wins.)

And yes, when you "buy" an ebook, you do agree in the contract that you are actually renting it, but there's quite a lot of case law (mostly at the state level, unfortunately) that says that those provisions are meaningless (and some that says they're enforceable). The general analysis is that if you a) pay a one time fee, and b) get use for an indefinite period of time, that it is a "sale of goods," not a license, no matter what the sales contract says. And if it is a sale of goods, then the first sale doctrine applies, and that's that.

In other words, they can't limit this sort of thing for the same reason they can't put a sticker on a paper book saying you can't sell it to someone else when you're done with it. The law just doesn't work that way. Copyrights are governed by copyright law, not contract law.

[fjtorres]

Originally Posted by taustin

There is, in fact, a very large grey area in the matter, that can only be resolved by the courts, and the case law just isn't there yet.

And it won't be if the content vendors can help it.
It is going to take a lawsuit seeking a declaratory judgment from some somebody on the consumer side and those are tricky cases to build.

[Apache]

If a contract is deemed to be vague or have more than one meaning the party that wrote said contract is held responsible.
For example, I used to have my store in the local mall. The mall sent me a certified letter telling me I was in violation of my lease and if I did not stop violating said lease they would shut me down. When I started my business, I was doing mostly repairs. As my business grew I started adding more merchandise. Note I said more merchandise. Even at the beginning I was selling jewelry. One of the other jewelry stores complained and the mall issued the letter without reading the lease.
I reread my lease to make sure I was not violating my lease and then sued the mall. The mall lost because the lease did not exclude me from selling merchandise and since they wrote the lease they did not have a case. By then I was tired of having a mall store and used the lawsuit to get out of my lease and open a free standing store.
Apache

[taustin]

Originally Posted by fjtorres

And it won't be if the content vendors can help it.
It is going to take a lawsuit seeking a declaratory judgment from some somebody on the consumer side and those are tricky cases to build.

Or someone with sufficient funds to simply defend themselves after provoking a lawsuit, which is also tricky, but not as much so (since that would almost certainly draw the EFF's attention - and money).

[taustin]

Originally Posted by Apache

If a contract is deemed to be vague or have more than one meaning the party that wrote said contract is held responsible.

This isn't a matter of ambiguity or vagueness. It's a matter of what contracts are, and are not, allowed to do, regardless of what they say. You can sign a contract that says the other party can eat your first born child for dinner, but it's still murder. Some rights cannot be given up, and fair use rights are among them.

Again, copyrights are governed by Title 17, copyright law, not contract law.

[Apache]

True. Just as a when a no compete contract is not legal if it can stop you from making a living. They can keep you from competing within a defined area , say a small town or an area within a larger town.
Apache

[Robotech_Master]

For whatever reason, apparently the publishers didn't see fit to press a DMCA claim. It's a little puzzling, really. All these years, the DMCA's anti-circumvention has been the bogeyman we tell stories about around our blog and forum campfires. It's illegal to crack DRM for any purpose, even if you want to make fair use. It's illegal even to tell people how to crack DRM.

Sure you've got your interoperability provisions, but the precedents are pretty murky overall, with one judge outright saying that if Congress had meant fair use to be a defense against the DMCA, they would have outright said so. The overall effect is to scare people into not even trying to take the claims to court.

Which brings us back to wondering why the publishers didn't throw in an antii-circumvention charge, too. It's a puzzler. And it's also the reason why this ruling may not amount to much in the end. I'm not a lawyer, but it would seem to me that if someone tries to use this ruling as precedent, all the opposition needs to do is point out that the ruling didn't consider the law in question at all.

[taustin]

Originally Posted by Robotech_Master

For whatever reason, apparently the publishers didn't see fit to press a DMCA claim. It's a little puzzling, really. All these years, the DMCA's anti-circumvention has been the bogeyman we tell stories about around our blog and forum campfires. It's illegal to crack DRM for any purpose, even if you want to make fair use. It's illegal even to tell people how to crack DRM.

Except, of course, it's not. I cited the relevant section of Title 17, which has several excemptions.

Originally Posted by Robotech_Master

Sure you've got your interoperability provisions, but the precedents are pretty murky overall, with one judge outright saying that if Congress had meant fair use to be a defense against the DMCA, they would have outright said so. The overall effect is to scare people into not even trying to take the claims to court.

Which brings us back to wondering why the publishers didn't throw in an antii-circumvention charge, too. It's a puzzler. And it's also the reason why this ruling may not amount to much in the end. I'm not a lawyer, but it would seem to me that if someone tries to use this ruling as precedent, all the opposition needs to do is point out that the ruling didn't consider the law in question at all.

I expect the reason nobody has included an anti-circumvention claim is that their lawyers tell them not to, because they wouldn't likely win. There being exemptions for interoperability, and all.

Originally Posted by taustin

That's nitpicking that judges and juries tend to view as an attempt to distract from the real issues[1]. There is a DRM removal tool that is used with Calibre, and the defendant pointed people to it. That is the relevant data. Since neither Kovid nor Alf were litigants the details don't matter.

In the case of Calibre, has Kovid even acknowledged the existence of Alf? If he hasn't, I can't see how it would be considered as a nitpick. He has created a piece of software that allows extensions. It isn't terribly different than Linux, OS X, or Windows being able to run software developed by a third party. (Doesn't Alf contain a standalone program in addition to the plugin?)

That said, it would be interesting to find out how Alf is used. Judging from the comments on this forum, its primary uses seem to fall into two camps: those who want to do format conversion in order to buy from one vendor and use an ereader from another vendor, as well as by those who have a general distrust of DRM. Neither imply copyright infringement in the sense of distributing copies to other people, even though it is probably copyright infringement in a legal sense. It also makes sense that copyright infringement wouldn't be the primary use of these tools. It seems as though very few people are actually interested in the distribution end of piracy, where DRM removal is necessary. Most of those who do pirate seem to be interested in getting free stuff. You don't need DRM removal tools for that.

As for suing under the DMCA, why does fjtorres think that publishers want to avoid opening that can of worms? Does it have a chance of failing under a constitutional challenge? Or would there be (more) public pressure to repeal the legislation?

[eschwartz]

They don't know that they'd win. It would be disastrous if they lost, so why not stick with the current climate of FUDing it to death and accusing everyone in sight of copyright infringement?

[HarryT]

Originally Posted by BWinmill

(Doesn't Alf contain a standalone program in addition to the plugin?)

If you mean "is there a standalone version that can be used as an alternative to the plugin?", then yes, there is.

[crich70]

Originally Posted by HarryT

If you mean "is there a standalone version that can be used as an alternative to the plugin?", then yes, there is.

I think that one is python based if I recall. I never could quite get the hang of it. I imagine more people use the plugin, and for that reason.