Circumventing Into a DRM Scheme: of Kindles and Interoperability

In a rather complicated story last week, CNET News reported that Amazon had sent a cease-and-desist letter to the moderator of an online discussion forum dedicated to eBooks, alleging violations of the Digital Millennium Copyright Act (DMCA), which prohibits the circumvention of technological protection measures (TPM or digital rights management – DRM) included in digital copyrighted works. Several posts on the site had linked to a script and instructions that allowed eBooks downloaded from libraries or purchased at sites other than Amazon.com to be displayed on Amazon’s popular Kindle reader. With respect to the Kindle itself, I question whether there is really a DMCA violation here, in that the script in question doesn’t exactly remove or circumvent any Kindle-based TPM, but rather enables the Kindle to display DRM-protected eBooks that the device doesn’t natively support. Ultimately, the script on its own is used not to violate any copyrights, but simply to allow legally purchased eBooks (just not from Amazon.com) to be read on the Kindle, a use that is arguably socially beneficial in terms of interoperability, competition, and innovation.

For those interested in the technical details, Daniel McCartney at Public Knowledge has a good post on the script (and how it interacts with other scripts toward more nefarious ends than it alone was designed for). Suffice it to say that the script itself simply enables the Kindle to display eBooks in the secure Mobipocket format legally procured from non-Amazon sources without stripping their DRM. (It should be noted that Amazon protects the eBooks it sells using the same DRM, albeit not in a way that is compatible with the generic secure Mobipocket format.)

Nonetheless, Amazon’s letter asserts that the script and instructions circumvent a TPM “that effectively controls access to . . . Amazon.com and the copyright owners who distribute books and printed materials viewable on the Kindle,” and further alleges that the script and instructions “purportedly allow removal of technological protections that prevent copyright infringement.”

Although the forum posts addressed in the company’s letter did discuss the script in conjunction with stripping eBooks of their DRM, and although it is arguable that the script circumvents a TPM included in secure Mobipocket files that effectively prevents their display on the Kindle, with respect to the script itself, neither of Amazon’s assertions seems to be true. Ironically, Amazon owns Mobipocket and could have made the latter claim, but did not in the letter. In fact, Amazon’s complaint addresses only the script, which interacts with books and printed materials not otherwise viewable on the Kindle. Rather than removing any TPM designed to protect works viewable on the Kindle, the code actually adds support for a type of DRM absent from the Kindle. To be sure, the absence of such support prevents certain works from being read on the Kindle, but can the absence of a feature legitimately be considered a TPM? Protecting what copyrighted work?

Interoperability and Competition

The larger questions here are ones of interoperability and competition. It seems that Amazon is using DRM and raising DMCA concerns at least in part to prevent Kindle users from shopping for eBooks away from Amazon.com, rather than to protect a legitimate copyright interest. CDT has written extensively on DRM and consumer choice, arguing that DRM can be appropriate and even beneficial to the extent that it enables choices and business models not otherwise available to consumers. A favorite example is online movie rental: DRM that prevents every rental from becoming a purchase is necessary to effectively differentiate the two offerings and to allow for inexpensive rentals. On the other hand, DRM that serves only to lock media purchasers into (or out of) a particular platform or device is less desirable to the extent that enabling interoperability would not violate copyright.

Indeed, the DMCA even makes a narrow exception for circumvention solely for the purpose of software interoperability. While there might be some legal sticking points, the facts here are remarkably similar to Sega v. Accolade, which ruling Congress sought to preserve in enacting the DMCA’s interoperability exception. In the case, the court held that Accolade’s circumvention of Sega’s TPM was permissible insofar as the goal was creating interoperable games, i.e. games playable on Sega’s system. Similarly, the program Amazon seeks to suppress simply allows legally purchased eBooks to be read on the Kindle.

Currently, the interoperability exception only applies when circumvention is necessary to achieve interoperability between independently created computer programs. Given uses of DRM and the DMCA like Amazon’s, it is worth asking whether this exception should be expanded to prevent the application (or the threat) of the DMCA to enforce lock-in and to combat not copyright infringement, but aftermarket competition in the distribution of copyrighted works. For a detailed legal analysis of the DMCA, antitrust law, and interoperability, see Aaron K. Perzanowski’s “Rethinking Anticircumvention’s Interoperability Policy.”