The first obvious question is, would publishers see major losses due to copying and distributing of ebooks that do not have DRM?
Many would argue no. First, DRM is easily cracked. Anyone bent on making a copy and sending it to a third-party will do so regardless of DRM. Second, Apple has demonstrated that publishers don’t need DRM. When iTunes first launched, all files contained DRM. Sometime in the past few years Apple quietly dropped DRM. Rather than diminishing, the market for music through legitimate channels continues to climb.
Thus, there is a good argument that the ebook publishing world can go “non-DRM” without suffering any major losses. Pottormore is famously doing so. In January of this year, Anobii CEO Matteo Berlucchi gave a speech at Digital Book World suggesting that major book publishers should abandon the use DRM.
On the other hand, publishers have a legitimate concern for how they might protect works from copying en masse by counterfeiters or distribution through resale, rental or other aftermarkets. In order to protect their works in this class of infringement, publishers will need to rely on the Digital Millennium Copyright Act (“DMCA”). In order to rely on the DMCA, the publisher must have either technology that is circumvented or copyright management information that is removed. And therein lies my solution.
A Legal Solution
What ebook publishers really want to prevent is large-scale file sharing. This is not stopped by DRM. In fact, DRM is futile against large scale file sharing. So, ebook publishers should look for enforcement mechanisms against the intermediaries of large scale file sharing.
There are legal mechanisms for permitting enforcement against used ebook stores, as well as other forms of sharing, renting and reselling of ebooks. The solution that I propose is to use a combination of the existing DMCA rules in order to give a level of protection that is minimally necessary to enforce against used ebook stores, resellers and rental markets.
Publishers need not be afraid of stepping outside of book reader software and devices. In fact, the insistence on heavy DRM by publishers has unwittingly given Amazon power over the ebook market that publishers now regret. Customized DRM on Kindle devices creates a closed system that locks readers in to one retailer, which is potentially far more dangerous to the ebook publishing industry than the threat of piracy, in my opinion. We can free ebooks from DRM software and corresponding hardware and use existing legal mechanisms for enforcement against the worst copyright breakers.
The solution proposed is to create ebooks (in ePub or even PDF) with a watermark randomly placed throughout the book (visible and invisible). The watermark would contain the personal information of the customer who purchased the ebook and a warning not to resell, or distribute the book in any way. The user who purchases such a book will agree to terms and conditions (i.e. a “clickwrap”) that prohibit copying and distribution, as well as a statement that the consumer’s personal information will be prominently displayed on the book as a deterrent from distributing or copying in violation of the agreement.
The point of making a watermark that shows the user’s personal information is to create a disincentive for the user to pass the book along to unknown third parties, deputizing the user to act as a gatekeeper, protecting the book from wrongful distribution. If a file-sharing service or ebook reseller removed the watermark, it could be a violation of the DMCA Section 1201.
The watermark of the personal information could also have the publisher’s serial number embedded. Doing this creates an additional remedy under the DMCA Section 1202, which prohibits the removal of “publisher information” such as serial numbers. (Hat-tip to Cory Verner, who came up with this part of the mechanism. Verner is president of eChristian, Inc., an Escondido, Calif.-based Christian audio-book retailer. He has filed a patent application for the idea.)
The DMCA provides a variety of protections for digital works, such as Section 1201, which prohibits the “circumvention” of “a technological measure that effectively controls access to a work protected under this title.” The DMCA also prohibits the removal of copyright management information (“CMI”) under Section 1202, which includes the work’s title, author, and the copyright owner, as well as certain other “publisher information.”
What makes this “DRM” unique is that the removal of the watermark would likely violate the DMCA’s prohibition on circumventing a technological measure as well as the removal of “publisher information.” While the case law is not clear that this would be considered a circumvention, I present a novel rationale for applying Section 1201 of the DMCA to removal of a watermark.
In previous cases, technologies that are “passive” are generally not considered to “prevent access” under Section 1201. However, I believe that making the user an active participant in the protection of the book, the technology does not operate as a “pass through” the way a username and password would. But, the technology deputizes the user as the means of preventing access to the work by unauthorized third-parties.
This solution will not prevent a user from sharing a book with the user’s family or close friends. But publishers probably don’t want to sue their customers for sharing ebooks with their aunt or sister. Traditional printed books are often shared with family and friends. What ebook publishers need is a way to distribute ebooks with as little hassle as possible, while ensuring that the publisher can sue pirates and stop ebook resale, rental and large scale sharing.
To accomplish this, we don’t need heavy DRM, but something lighter. Why not use a form of DRM that lets the market grow, and reap the rewards of the next technological revolution as the ebook wave brings a massive new volume of sales and sweeps printed books to the side?
Thus, I propose using personal information as a deterrent against wrongful distribution of the book. We can deputize our customers to prevent wrongful distribution. The customer agrees not to distribute the book. If they do, the next reader will see the personal information of the original owner placed throughout the book, both visibly and invisibly. As such, not many users will violate their agreement because they will not want to have their personal information shared with unknown third-parties. Further, if they strip the information, they’re in clear violation of the DMCA.
Readers might “share” book with family and friends who already have their personal information; but they would have been free to do that with a non-digital book in the printed book business. The watermark is likely to confine file sharing to the close family; those with whom the original purchaser has a personal relationship, which is the very type of person with whom paper books are typically shared.
These are the abridged version of my conclusions. I will be publishing a much longer, more detailed piece on the topic titled Digital Rights Management Lite: Freeing ebooks from Reader Devices and Software. Can Digital Visible Watermarks in ebooks Qualify for Anti-circumvention Protection under the Digital Millennium Copyright Act? (Virginia Journal of Law & Technology, volume 17, Issue 2 (Summer 2012, forthcoming).
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