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

[JoeD]

Telling users how to strip the DRM from their legally purchased ebooks is not contributory copyright infringement, according to a ruling last month by a federal judge in New York.

eff summary of the decision

I'm a little surprised by this ruling but quite pleased it went the way it did.

[fjtorres]

They are stretching the bounds of the ruling a bit.

Here's TELEREAD's take:

http://www.teleread.com/drm/judge-co...-infringement/

Cote dismissed the charge of contributory infringement, ruling that the publishers didn’t have a case because they couldn’t point to any specific example of actual infringement—which is to say, cracking the DRM and then uploading the copies to peer-to-peer or even just sharing them with friends, rather than just cracking the DRM for the fair use purposes of backing media up or transferring it to other devices. There has to be an actual infringement for Abbey House to be contributing to for it to be liable for contributory infringement.

Left open is what the law might say if they had actually identified an Abbey House customer who had followed the suggestion and was willing to testify they stripped DRM solely because of it.

[HarryT]

I would note that the article is factually inaccurate: Calibre does not strip DRM, although plugins which one might choose to install in the program can do so. Those plugins, however, are not a part of Calibre, any more than a Firefox plugin is a part of Firefox.

[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.

[meeera]

Yes, Abbey House claims that Calibre is a DRM-stripping tool in their quote, and both the EFF and Teleread repeat that claim without interrogating it. Huh.

[rixte]

Originally Posted by fjtorres

They are stretching the bounds of the ruling a bit.

Here's TELEREAD's take:

http://www.teleread.com/drm/judge-co...-infringement/



Left open is what the law might say if they had actually identified an Abbey House customer who had followed the suggestion and was willing to testify they stripped DRM solely because of it.

The judge clearly stated that wouldn't have been a problem. It only would have become one if they had then uploaded those copies (and Abbey House knew that they would):

"The act of infringement underlying the inducement claim, however, is not the removal of DRM protection. Rather, it is the copying and distribution of ebooks to others after such protection has been removed. The counterclaims do not allege that Abbey House encouraged such infringing acts."

[fjtorres]

Originally Posted by rixte

The judge clearly stated that wouldn't have been a problem. It only would have become one if they had then uploaded those copies (and Abbey House knew that they would):

"The act of infringement underlying the inducement claim, however, is not the removal of DRM protection. Rather, it is the copying and distribution of ebooks to others after such protection has been removed. The counterclaims do not allege that Abbey House encouraged such infringing acts."

She isn't saying that DRM stripping is legal, just pointing out that the infringement lies in the uploading.

She is sidestepping the whole DMCA/stripping issues.
In other words, if no uploading occurred, there is no infrigement. Whether the file started DRM-free or not.

She is very narrowly working her way back down the infringement process and stopping at the upload stage: no proof of upload, no case.

There is less here than meets the eye.
She isn't making precedent, just saying the plaintiffs didn't make a case.

[JoeD]

Originally Posted by fjtorres

Left open is what the law might say if they had actually identified an Abbey House customer who had followed the suggestion and was willing to testify they stripped DRM solely because of it.

Not sure how that may have played out, it may have made for a more interesting case if it had been tested. She did mention they require "both knowledge of direct infringement and material assistance to the direct infringer"

I'm not sure how to interpret that really, is there an implied ordering in the statement? For example, if you know someone is an infringer and direct them to tools, I imagine that's contributory infringement. However, if as in this case, they had no reason to know/treat their customers as infringers at the time they directed them, would whether or not they later became infringers alter it to contributory infringement?

Either way, for the case as reported, I think the correct decision was made. The company was not encouraging people to use the tools and then upload/share and they had a valid use case for why the customers would need to remove DRM other than to infringe copyright.

As for the mention of calibre. They can use calibre to remove DRM albeit not without downloading an additional plugin that is nothing to do with the developers of calibre nor easily accessible from within calibre (unlike other plugins). Perhaps it's technically correct that you can use calibre to do so (after plugin installation) but only is the same sense you can use windows to remove DRM by installing calibre + a plugin I think they've err'd in attributing it directly to calibre.

[JoeD]

Originally Posted by fjtorres

They are stretching the bounds of the ruling a bit.

Here's TELEREAD's take:

One bit I'm also interested in from that link, is the bit about the DMCA. Since removal of DRM from ebooks isn't in the exceptions allowed, I wonder why they didn't just sue under the DMCA rather than going for a contributory infringement, maybe the outcome would have been different? Maybe they'll file a new case under the DMCA now?

Unless they're not sure trafficking in really does just mean pointing people to an application, especially when nothing that application does nor the site it's on has anything to do with DRM removal.

[fjtorres]

Originally Posted by JoeD

Not sure how that may have played out, it may have made for a more interesting case if it had been tested. She did mention they require "both knowledge of direct infringement and material assistance to the direct infringer"

I'm not sure how to interpret that really, is there an implied ordering in the statement? For example, if you know someone is an infringer and direct them to tools, I imagine that's contributory infringement. However, if as in this case, they had no reason to know/treat their customers as infringers at the time they directed them, would whether or not they later became infringers alter it to contributory infringement?

Either way, for the case as reported, I think the correct decision was made. The company was not encouraging people to use the tools and then upload/share and they had a valid use case for why the customers would need to remove DRM other than to infringe copyright.

The context helps a bit:

- Abbey House is suing for reparations over the damage done to their ebook business.
- the Judge effectively ruled in their favor by sending both parties to arbitration to define the damages, from anything from zero to millions
- in order to mitigate the likely payout, Penguin and company claimed contributiry copyright infringement

So the judge looked at the claim and said, in legalese; "You didn't prove any infringement took place, much less Abbey House had anything to do with it if it even occurred."

The issue raised before her was copyright infringement, not DMCA violation, so why would she go out on a limb opening a can of worms that wasn't placed before her?

The counterclaim was something of a hail mary and thrir lawyers are no Doug Flutie.

Originally Posted by JoeD

One bit I'm also interested in from that link, is the bit about the DMCA. Since removal of DRM from ebooks isn't in the exceptions allowed, I wonder why they didn't just sue under the DMCA rather than going for a contributory infringement, maybe the outcome would have been different? Maybe they'll file a new case under the DMCA now?

Unless they're not sure trafficking in really does just mean pointing people to an application, especially when nothing that application does nor the site it's on has anything to do with DRM removal.

Nobody in the content business wants to litigate DMCA.
They themselves aren't sure they can win.

Given the recent performance of the BPH lawyers, they have good reason to be wary.

[crich70]

I don't see any contradiction. If I tell you where to go to get a good deal on a handgun I'm not aiding you in the commission of a crime. What you do with the gun once you have it may be criminal in that you can hold someone up or murder someone with it, but giving you the address of the gun shop isn't an illegal act. Likewise telling someone where they can find the tools shouldn't be considered criminal, and neither should it be so if you strip DRM from a book you have purchased (as long as you aren't posting it online for others to get without paying). If you strip a copy you bought then that should be ok. It's when you post it to a torrent site or other such that you are in violation of the law I think.

[JSWolf]

Regardless of this ruling, remember when Tor first went DRM free and there was the problem of some stores not setup correctly to deliver Redshirts DRM free? Both John Scalzi (the author) and tor advocated the use the the DRM removal tools. Basically, they gave permission for the DRM to be removed.

What that did was basically legitimize the DRM removal tools. This ruling just basically goes down the same path (IMHO). Nobody was ever saying it's OK to strip the DRM and then distribute the eBooks. But you know it's going to be shared among some friends and family regardless. It's the sharing on the net to anyone who can find it that's the issue.

[taustin]

Originally Posted by JoeD

One bit I'm also interested in from that link, is the bit about the DMCA. Since removal of DRM from ebooks isn't in the exceptions allowed, I wonder why they didn't just sue under the DMCA rather than going for a contributory infringement, maybe the outcome would have been different? Maybe they'll file a new case under the DMCA now?

That would be a case against the end user who actually removes the DRM, which would be irrelevant as a counterclaim in this case. Helping people remove the DRM is contributory infringement, which is what they claimed here (and lost).

[JoeD]

Originally Posted by taustin

That would be a case against the end user who actually removes the DRM, which would be irrelevant as a counterclaim in this case. Helping people remove the DRM is contributory infringement, which is what they claimed here (and lost).

I was referring to the trafficking side of the DMCA which there's debate surrounding what is/is not trafficking, from providing software, linking to it or otherwise pointing people towards it.

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

[ApK]

Originally Posted by fjtorres

There is less here than meets the eye.
She isn't making precedent, just saying the plaintiffs didn't make a case.

Yes, it was an appropriately narrow decision. That's fine. I'm liking Judge Cotes more and more every time she makes the news here.