There is quite the brouhaha going on about “The Ethicist” turning a blind eye to trucking with book pirates to get an e-copy of a popular novel that is not yet in electronic format. Nathan Bransford and Victoria Strauss take exception to this practice, and I agree with their assertions: don’t do that, it isn’t ethical.
As Nathan explains, there are two portions to a book product: the medium and the content. Electronic medium is quite different from a paper book. It has value because it’s electronic, and it has value because of the content. The two enjoy economic separation; the market for e-books has spoken on this: the format of the content has specific value, and stealing that value is wrong.
Unfortunately, neither Nathan nor Victoria examined this issue from end-to-end. Nathan almost went there:
“It’s one thing for an Ethicist to remind a reader that they are within their ethical (and though I’m not a lawyer, likely legal) rights to create their own e-book by scanning their book into a computer strictly for personal and not-for-profit use. This is the proper CD-ripping analogy. It’s taking something you own and converting it to another format through your own time and effort, whether that’s making an electronic file or to taking a book apart to wallpaper your house.”
This is the heart of the matter. The Digital Millennium Copyright Act obscures what is legal and illegal, and that simple but often overlooked fact has far-reaching implications. I believe this is indeed legal:
“It’s one thing for an Ethicist to remind a reader that they are within their ethical (and though I’m not a lawyer, likely legal) rights to create their own e-book by scanning their book into a computer strictly for personal and not-for-profit use.”
This, in most cases when talking about electronically protected files, is most likely not:
“It’s taking something you own and converting it to another format through your own time and effort, whether that’s making an electronic file or to taking a book apart to wallpaper your house.”
Here’s a scenario: Bob downloads an album from iTunes. It is in MP4 format. The format isn’t supported by Bob’s car. Bob burns the MP4 files to a CD in music CD format. He takes the music CD, and rips it in Windows Media. Now his MP4 files are MP3 files. He listens to those MP3 files on his laptop at work, uses the music CD in his car, the original MP4 files he listens at the PC he has iTunes installed on, and since he used Media Player to rip the CD into MP3s, he streams the music to his Xbox 360 which is connected to his home theater. Bob is jamming! Go Bob, go Bob, get busy, it’s your birthday!
That’s also illegal, Bob. Go to Jail, Do Not Pass Go. The Digital Millennium Copyright Act says you can’t by-pass copy protection (built into the MP4 file) by converting the content to a different media.
It was also illegal or Bob to tell his wife how to do this. It was illegal for the author of the web article that described this trick to Bob to do so. We can argue that I am breaking the DMCA in describing the very same thing. Telling someone how to circumvent electronic copy protection is a violation of the Digital Millennium Copyright Act. Unless Apple, in its user agreement with iTunes on behalf of a content publisher, granted Bob’s specific rights to do so, it was also illegal for Bob to simply convert the MP4 files into a music CD because doing so strips out the copy protection of the file.
The Digital Millennium Copyright Act says you can be fined and go to jail for this.
It doesn’t stop there. Here’s another scenario: Cathy buys DVDs for her kids to watch at home and in the car. But these DVDs get munged (munged is a technical term) because her kids are kids.
So, Cathy makes backup copies of her DVDs.
This is illegal. By-passing the Macrovision copy protection to make a backup copy of your DVD is illegal according to the DMCA. The website pointing her to the program to do this also broke the law.
Bill, a international man, changes the firmware in his DVD player so it will become a generic DVD reader and play anime DVDs. They didn’t play because they were not Region 1 disks. This is illegal.
Mary converts her proprietary e-book format books into PDFs so she can read the book, on occasion, on her laptop.
Unless the publisher granted her rights to do this in an End User License Agreement, this was illegal because the publisher designed the content for reading only on a specific device. It was illegal for Mary to do this, and illegal for someone to tell Mary how to do this.
Make an electronic backup copy of an e-book in which the user has to by-pass even the most innocuous form of copy protection (such as converting the file)?
Illegal. Oh, and, not a lawyer, by-the-way. But I did read the DMCA.
There are hundreds more scenarios. Most that seem, on the onset, to be reasonable and just, but, in actuality, run afoul of the DMCA.
Congress, our elected officials, has made it illegal for you to make backup copies of software in many situations. The only way a reasonable person would know what they can and cannot do with content is to actually go in and read the End User License Agreement that comes with the content and the DMCA.
Now, what does this have to do with the scenario outlined at the very beginning of this post? It has everything to do with it. The original scenario is a violation of Copyright Law, and, since a digital medium was involved, runs against the Digital Millennium Copyright Act.
Now, there are portions of the DMCA that would fall apart in court with the right group of smart lawyers. It is bad law, which is why you don’t find Cathy and Bob going to jail. And that is my point. The original scenario of downloading a pirated e-book because the customer had a hardcover copy is just a blip of NOISE in the messed up digital world of what is wrong and what is right, what is legal and what is illegal.
And the sad thing is, because it’s noise, that act stands legally right up there with Cathy (“my kids destroy my DVDs”) and Bob (“I want to listen to my music in my car”) being felonious malcontents. People are confused over what they can do and what they can’t do. And the only way you know what you can do is if you not only read the EULA for the digital content, but if you also are familiar with the DMCA. Even if you are just a person trying to mind their own business and buy content to consume and enjoy.
Who created this noise? Content publishers. They wrote the law, their lobbyists pushed for it, Congress passed it, and the President signed it.
The DMCA helped kill DVDs just as it helped kill music CDs. There are other factors involved such as piracy, but the most overlooked unintended consequence is bad law made the world too confusing for too many people. Overtime, people will take the path of least resistance. They will stop buying content if the content in question is too much of a hassle, from either a content usage standpoint or a legal standpoint. Free enterprise takes the path of least resistance, and in the digital world, that path can be both innovate and completely unpredictable. This is my cautionary tale: The movie industry and the music industry broke into jail with copy protection and the DMCA. The book publishing industry can do the same.
I want everyone with an e-reader to hold it in your hands. Take a good look at it. If content publishing is screwed up, if it publishers take the easy path rather than the correct path, if we assume people like Bob and Cathy should go to jail, then, my friends, there could be a time when the device you hold in your hand is not a Kindle but a Betamax player.
It can get worse than that. Then there is the ultimate scenario: that content publishers make things so difficult, that people turn to other mediums of entertainment, spending their dollars on things that work, don’t break, are theirs to call theirs, and gives them control over their time and dollars. Then, what you have is everybody going through a horrific shrinkage of a industry, where even a publisher like Baen, who makes it absurdly easy for people to get electronic versions of their novels, suffers mightily because people have moved on.
And if that happens, what you have in your hands is not your e-reader, but a horseshoe. Before, physical goods economy-of-scale normalized medium switch-overs. It took time for the horse to be replaced as a means of transportation, even less for VHS to kill Betamax.
Today? A simple Facebook update can create a scaled behemoth in hours.