A Happy Medium: Ebooks, Licensing, and DRM
by Kurt Schiller
In January 2009, ebook distributor Fictionwise announced that about 300,000 ebook purchases would become invalid within a month. Although those files that had already been downloaded by customers would continue to work, users would no longer be able to download new copies. That meant that there was no possibility of putting the ebooks on a new device and no chance of getting a replacement if the original file was lost or deleted.
The event that instigated this announcement was deceptively mundane: One of the companies that supplied Fictionwise’s ebooks said it would no longer be an ebook supplier. Fictionwise neither owned nor had direct access to the ebook files and depended upon its supplier for the files as well as to authenticate the digital rights management (DRM) system for each ebook. The DRM system was in place to ensure that each file was only used in one device.
Fortunately for the affected customers, this tale has a happy ending. Fictionwise, which Barnes & Noble acquired last March, worked with publishers to secure the titles in other formats, which customers could then use to replace their original purchases.
Although not all of Fictionwise’s difficulties can be blamed on DRM, the licensing and digital content is at the heart of the incident. After all, a printed book remains the same no matter what troubles befall the publisher. Fictionwise’s dilemma also illustrates why DRM is one of the most contentious issues in the ebook industry today.
In the Shadow of Napster
In early 2009, The New York Times reported that ebook piracy is increasing, keeping pace with the growing popularity of ebooks. Not surprisingly, publishers are taking measures to prevent widespread piracy in other digital mediums. Of course, ebook piracy is nothing new: In 2000, author Harlan Ellison filed suit against a man for illegally distributing a number of his works through Usenet discussion groups. Ebooks were being pirated almost as soon as they were created.
When digital copyright and the threat of piracy are mentioned, most people may think about Napster, the controversial peer-to-peer network that popularized online music and yet forced almost every information and content industry to re-evaluate piracy, online sales, and content protection. Napster proved that the growing online masses were hungry for content and inspired a host of legal alternatives; it also convinced industries that copy protection was essential.
“One thing initially that has driven [DRM’s] sometimes-implementation is that everyone sees what has happened in the music industry,” says Scott Bain, litigation counsel for the Software & Information Industry Association (SIIA). “When they moved to digital and made the decision to have CDs that were unprotected ... once you let that cat out of the bag, it never goes back in. And I think people have observed that, and I think it’s fair to say that people in the publishing industry want to learn from that example.”
Comparing ebooks to digital music provides a striking contrast: While the first MP3 players (such as the Diamond Rio, which hit the market more than a decade ago in 1998) made no allowance for DRM or copy protection, the first portable e-readers included DRM provisions from the beginning and were built around the notion of legally purchased books. And while the recording industry was essentially blindsided by the widespread piracy that accompanied the ever-popular MP3s, the publishing industry dug in from the start, anticipating that piracy would quickly become an issue. It secured its content behind a protective layer of rights and encryption.
Kirk Biglione, a new-media consultant and co-founder of the pro-consumer media blog Medialoper, writes frequently on the subject of DRM in media. One of his most prominent criticisms of DRM use in ebooks and elsewhere is what he perceives as a lack of transparency. Because of the variety of ebook formats and DRM schemes, as well as the inconsistent labeling practices by retailers, it can be difficult for consumers to tell what restrictions are placed on the content they’re purchasing.
Although this problem may seem to have an easy solution (to provide clearer information about the DRM in use on particular titles), it doesn’t. The fact remains that there are competing ebook formats and competing DRM schemes. Many DRM systems also contain more restrictions than copy protection: Some systems have built-in download limits, some may lock files to a particular device, and some even disable certain reader functionalities.
A similar situation existed in the early days of the digital music industry, but the emergence of Apple and its iTunes platform created a de facto standard for digital music. Amazon also may be on its way to becoming just such a force. Biglione points out that many of Amazon’s standards and practices seem to be modeled on Apple’s example. But the trend now is diversification rather than standardization. Just take a look at the increase in the number of e-readers during the past several months, each with its own list of supported formats, DRM systems, and restrictions.
Unlike Apple, Amazon allows publishers to dictate the specifics about the restrictions on content, according to Biglione. So while iTunes purchases are uniform in price and DRM-related restrictions, ebook purchases can differ from publisher to publisher and from book to book.
Amazon also allowed publishers to remove or alter content retroactively: In one well-publicized example last July, copies of a certain version of George Orwell’s 1984 were deleted from customers’ Kindles after a copyright dispute questioned the publisher’s distribution rights. In another example, publishers were allowed to deactivate the Kindle’s text-to-speech functionality for several purchased ebooks after a dispute over audiobook rights with The Authors Guild.
Although Amazon apologized for the 1984 incident and said it wouldn’t happen again, the example highlights the content control that Amazon and publishers have over content, even after its purchase.
Biglione also downplays the immediate threat of ebook piracy, pointing to an ongoing study dating from 2008 done by consulting group Magellan Media Partners and a graduate student at New York University. The study, which focused on titles from O’Reilly Media, found that it took an average of 20 weeks before a newly released title appeared on file-sharing networks. “By then,” says Biglione, “a book has worked its way through the retail system.” The study also found fewer pirated titles than expected.
But while the Magellan study suggests that piracy may be overstated in some cases, there’s also evidence that the case is different in other genres: Last September, CNN and other news outlets reported that Dan Brown’s book The Lost Symbol was being traded on file-sharing sites just days after its mass market release.
Taking a Look at Accessibility
Consumer confusion isn’t DRM’s only downside: Accessibility can also be problematic.
George Kerscher, secretary-general for the DAISY Consortium (a group devoted to developing digital access standards for those with print disabilities, such as the blind, visually impaired, or dyslexic), sees difficulties on the horizon. Although ebooks—with their ready-made text-to-speech capabilities—should be a major step up in accessibility in theory, that’s not the case.
“There are two pieces that need to be accessible,” says Kerscher, who is also president of the International Digital Publishing Forum, the organization behind the EPUB open ebook standard. “The first piece is the content,” he says. “The EPUB specification and the DAISY specification provide full accessibility in terms of the content. The second piece is a reader that delivers the content to the end user in an acceptable way. So this is the handshake that takes place between the content and the reading system. And the problem that we have had since the beginning with ebooks is that the user interfaces for commercial ebooks have not been accessible.”
To access written content on computers, people with print disabilities use software called a screen reader, which reads the text that appears on the screen aloud. Although screen readers work with unprotected ebooks, copy protection measures in protected ebook readers interfere with the software. And because many Kindle ebooks disable the device’s text-to-speech functionality, that frequently is not available either.
“A DRM-free book I could use with whatever reading system I want,” says Kerscher. He explains that most publishers choose to restrict their content to specific readers that enforce the DRM because of fears that the copy protection could be circumvented through the same mechanism that allows screen readers direct access to the displayed text.
“Yes, something could be written to intercept the textual content, the words that are being sent to [the synthesizer],” says Kerscher, “but you still would only get the words. You wouldn’t get the markup and everything that is associated with stealing the book.”
Current difficulties notwithstanding, Kerscher believes that increasing demand from consumers will lead ebook publishers to make their releases more accessible. “We’re just now seeing the demands by companies who purchase ebooks and use ebook content,” says Kerscher. He also notes that some libraries and educational institutions, such as the Los Angeles Public Library and the University of Illinois, have opted not to adopt heavy ebook use for the time being, specifically because of accessibility issues.
Finding a Middle Ground
Kerscher’s suggestion that customer demand will lead to an improvement in accessibility may reveal a solution to many ebook woes. Because the ebook market is just a market, it is possible that other issues with the current DRM systems and ebooks could be resolved the old-fashioned way: through competition and consumer demand.
People on both sides of the DRM debate argue that companies with overly restrictive DRM will drive consumers away. So many successful ebook retailers will probably be those that strike a balance with security, utility, and accessibility. Just as Apple brought uniformity to digital music standards by dominating the player and storefront markets, an equivalent ebook market leader could bring harmony to the ebook industry.
For Bain, consumers simply won’t purchase ebooks with excessive restrictions: “Consumers speak for themselves with what they buy,” he says.