Class Action Lawsuit Against Amazon and Publishers Misses the Mark
February 21, 2013 | 12:52 pm
By Juli Monroe
According to the Huffington Post, three independent bookstores are filing a class action suit against Amazon and the “Big Six” publishers.
Alyson Decker of Blecher & Collins PC, lead counsel acting for the bookstores, described DRM as “a problem that affects many independent bookstores.” She said the complaint is still in the process of being served to Amazon and the publishers, and declined to state how it came about, or whether other bookstores had been approached to be party to the suit.
“We are seeking relief for independent brick-and-mortar bookstores so that they would be able to sell open-source and DRM-free books that could be used on the Kindle or other electronic ereaders,” Decker explained to The Huffington Post by telephone.
While I love the idea of getting rid of DRM, this suit has a number of problems. Go and take a look at it. (We’ve also embedded it for you, below.) Cory Doctorow, in an update to the Huffington Post article, covers one of the problems.
That sounds great, but when you read the complaint, you find that what they mean by “open source” has nothing to do with open source. For some reason, they’re using “open source” as a synonym for “standardized” or “interoperable.” Which is to say, these booksellers don’t really care if the books are DRM-free, they just want them locked up using a DRM that the booksellers can also use.
There is no such thing as “open source” DRM—in the sense of a DRM designed to run on platforms that can be freely modified by their users. If a DRM was implemented in modifiable form, then the owners of DRM devices will change the DRM in order to disable it. DRM systems, including so-called “open” DRM systems, are always designed with some licensable element—a patent, a trademark, something (this is called “Hook IP”)—and in order to get the license, you have to sign an agreement promising that your implementation will be “robust” (i.e., implemented so that its owners can’t change it). This is pretty much the exact opposite of “open source.”
But that’s not all. They refer to the Amazon DRM scheme as “AZW.” AZW is Amazon’s file type. It has nothing to do with DRM. You can buy a non-DRMed .azw file from Amazon. Come on, guys, do your research.
Furthermore, they say that no Big Six publisher has entered into a contract with an independent bookstore. I doubt this has anything to do with DRM, and even if it did, I don’t think the legal system can force a company to sign a contract with another company.
Finally, I have to ding them on statistics. The suit claims that Amazon has both 60 percent of the dedicated e-reader market (plausible), and 60 percent of the small media tablet market. That last claim is ridiculous. To use the same percentage for both is silly. So I did my own fact checking. I found a recent report that Apple still has 44 percent of the tablet market, and that Amazon has 33 percent of the Android market. Way less than 60 percent, guys.
Like Doctorow, I sympathize with the indie booksellers. Amazon has hurt their business, but I’m not convinced DRM is the reason. As much as I personally despise DRM, I don’t think the courts are going to strike it down. And even if they did, they aren’t likely to do it because of this lawsuit. Which is too bad. I’d love to see it gone, and I’ll cheer wildly and support anyone who can come up with a good reason to get rid of the stuff.