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Should a class action suit be brought against OverDrive?
January 25, 2009 | 10:25 am
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By Paul Biba
Editor’s note: Please be sure to read Fictionwise’s long and thoughtful comment on this post after you finish the main text.
“Fictionwise obtains "feeds" of eBooks from several different content aggregators, and these aggregators use their servers to deliver encrypted files to our customers. One of these aggregators recently gave Fictionwise notice that they would cease serving files to Fictionwise customers as of January 31, 2009."
So says a notice I received from Fictionwise. We are all aware that OverDrive pulled its services from Fictionwise leaving thousands of readers, if not tens of thousands of readers, without the ability to read their DRMed Mobipocket books. Luckily, Fictionwise, being the responsible company that it is, went to great lengths to make alternative formats available to readers who had been harmed by OverDrive’s actions.
Not all readers made whole
However, not all readers were made whole. For example, I still have one book in Mobipocket format that seemingly won’t be converted to eReader. And what about all those readers that run on a Symbian platform? After all, Symbian is the most popular mobile OS in the world. There is currently no eReader program available for most of the Symbian platforms.
Now you probably could not bring an action against Fictionwise because by using them you agreed to the company’s terms of service. But I wonder about OverDrive. As a DRM provider OverDrive clearly understand that the end user is at its mercy. It could be argued that OverDrive undertook to deprive the reader, in this case a third party beneficiary, of that reader’s ability to make use of the book the reader had bought. Does OverDrive have an obligation to the reader in a case like this? Overdrive is a content provider, as well as a DRM provider. Could it have mitigated the loss to Fictionwise’s customers by serving the MobiPocket books directly to the customers it had cut off? I don’t know, but it seems to be at least theoretically possible. There’s a lot about the DRM system, and the end customers’ rights, that is still unclear; and maybe it should be litigated to lift some of the fog.
Lawsuit an intriguing possibility if facts justify it
As a lawyer I find this an intriguing possibility, but I am not a class action, or a third party beneficiary, specialist. What does our readership think? Any experts out there?
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Comments:
My own thought (I have one Overdrive book from Fictionwise that hasn’t been replaced – though it’s MS Reader not Mobi) is that the best thing would be for Overdrive to provide a Micropay refund for any book that is not replaced.
I don’t see it happening, but I think it would be the best way to handle things.
Hi Paul,
I respect your opinion but I have to disagree with your basic premise, as well as correct some errors in your post. So, three points:
1. It is highly counterproductive to talk about class action lawsuits. Overdrive has been very accommodating to Fictionwise in implementing this transition. Overdrive has not violated any kind of contractual obligation, so I seriously doubt that there is any basis for such an action.
The most productive course of action is to let Fictionwise keep working the issues behind the scenes with all the players involved. Threats are usually counter-productive in achieving cooperation among parties to solve problems.
2. eReader does work on almost all Symbian versions, and any that it doesn’t work on (one very recent release) are in progress right now. It was true that the prior owners of eReader neglected several versions of Symbian but we caught up on support in 2008.
3. It is premature for you to say you have files that “seemingly won’t” be replaced. We are still in the process of getting replacement files in place. We expect to be able to get the vast majority, and perhaps even all, of the books replaced. Hundreds of new replacement titles, covering thousands of purchased units, will be going up in just the next 10 days for example.
I know this has been an inconvenience to our customers but we are working through the issues one by one and are doing a tremendous amount of work to protect customer’s investments in content. The books do continue to function after January 31, and in the case of 2 of the 3 formats can even be transferred to new authorized devices after January 31 without any re-download required. Replacement files are being actively acquired and installed to give customers another way to view the content going forward that is under our total contractual control.
-Steve Pendergrast
Fictionwise
Well, I respect your opinion, too, as you are much closer to the facts than I.
However, I don’t think the issue here is the relationship of Fictionwise to Overdrive, or Fictionwise to its customers. It is the relationship of Overdrive to the reader that is unclear in the present state of DRM.
No matter how accomodating Overdrive has been to you, they are the “keeper of the keys”. As such it seems to me that they have some sort of responsibility the the user of the key, i.e. the reader.
What that responsibility is has not been determined legally and I think a class action suit by an interested party would be in everybody’s best interest. We need to define just what the “keeper” can and cannot do. I find it incredible that a third party, Overdrive, can mess with people’s property rights and have no sanction against them. While it may be arguable as to what sort of property right a reader gets to a DRMed e-book, I think a good argument can be made that the reader, at least, has a property right in the key. It is this key that Overdrive has taken from the reader without the reader’s consent.
The fact that you, Fictionwise, fix it is to your credit and shows you to be an honorable organization, but it shouldn’t be allowed to happen in the first place.
However, this is the predicament that DRM places us in and it is a crying shame that we are forced to think about issues such as this at all.
This sounds like OverDrive is guilty of theft. Real theft, not the fictitious “theft” that the *AAs frequently accuse file sharers of. This is the theft where something is taken away without the consent of the owner.
Imagine if you will that you just bought a doll for your child. At home, your child eagerly awaits the arrival of this present, but when you get there, the doll has ceased to exist because the organization that “authorises” the existence of this doll has remotely vaporised it. Is that not fraud? Is DRM not fraud?
People who implement DRM are stealing from their customers — plain and simple. No matter what OverDrive does now, or how gracious they seem to be, it will not compensate for the fact that they are doing something that would be obviously against the law in the physical world. They are making all purchases into snake oil.
Class-action suit or not, this is exactly the kind of thing that the FTC needs to hear about. Remember, you’ve still got a few days left to get your comments in by 1/30 for their DRM town-hall meeting.
I think everyone misses the point. DRM-laden ebooks are leased, not owned, property. There is no right to in perpetuity use. Fictionwise’s near-term resolution of the problem is fine but does not really address the long-term problem. It assumes that Fictionwise will be here tomorrow and not become a victim of a bad economy or the owners’ desire to retire.
Paul is probably right that a class action lawsuit is a good idea, but it would need to be against Overdrive, the individual book publishers, and Fictionwise because all are links in the same DRM-laden chain and it isn’t clear who has ultimate responsibility. It isn’t clear to me who has the responsibility to clearly state that the “purchase” is really a time-limited “lease” of a DRM-laden ebook.
Rich Adin said:
Well, I will try not to use any foul language when I call this a gross and disgusting fallacy. The fact is that when something is bought from someone else, it changes ownership — plain and simple. This “leasing” argument was cooked up by a bunch of executives who have delusions of charging customers for every chapter, page, or even word that they read. Imagine the hike in book prices if you paid a relatively small charge per page. The investors would be happy. The customers would not.
Would you allow publishers to claim that since they own the copyrights to the books in your house, those books are not yours? Would you pay them a percentage of the used book sales if you sold some old books? Would you allow their thugs to come into your house and confiscate any books that you did not pay “leasing” fees for? Why should digital books be any different?
When I buy something, it is mine, not yours, not the publisher’s, not the author’s, and anybody who claims to be the owner is guilty of both fraud and theft. The first for lying to me and trying to trick me out of one of my own possessions, and the second for claiming to own something in my possession.
This “leasing” argument is not only unacceptable but is also an affront the entire concept of private property — especially the one derived from the English legal system. It also opens the door for countless abuses of Free Speech. Imagine the government feels that a certain book has some information it disagrees with. It could force the publisher to change that information, and if you do not own your books, you would have no right to protest. If DRM was used, you may not even know the book was changed as there would be no evidence except for a nagging suspicion. DRM and the “leasing” concept make 1984 convenient for governments to implement.
There seem to be numerous misconceptions in this thread.
The Microsoft Reader and Adobe books can continue to be moved to new devices without re-download, because you can activate a new device using the same account. That’s 90% of the affected ebooks, they keep working and they continue to be loadable on new devices in the future. Even if Fictionwise goes out of business. Even if we never get replacement files for them. This “leasing” argument does not apply to them.
There is a legitimate issue moving Mobi books to a new device, which requires a re-download to encode a new device id in the file. But that’s why we’re providing replacement files in a format that does not require re-download.
So this talk about “leasing” only applies to Mobi format, and none of the other major formats. And mobi was the least number of units sold that are affected. Nonetheless we are working to replace all the ebooks, not just mobi format, for the convenience of our customers.
@Steve: No matter how you cut it, when someone buys a DRM-laden book, they are leasing the book. When the buy a pbook, they own the book. Until the law gives resale rights to ebooks equivalent or similar to that of pbooks, all the buyer is getting is a leased book.
@LuYu: I’m not suggesting that the leasing of ebooks is the way it should be, just that it is the way it is when books come with DRM and cannot be shared with friends. And leasing is not a foreign concept. People lease automobiles and apartments and other things. Leasing gives you some rights but not the same expanse of rights that full ownership gives you. Leasing is a conditional ownership and that is what DRMed ebooks are — conditionally owned objects.
Rich,
I still don’t really buy the “lease” designation. I think calling it a “lease” actually confuses the issue even more (if that’s possible
“Lease” generally implies that additional payment for continued use is required after a time period elapses, for example, which is not the case here. A lease also implies the “owner” takes possession of the item after expiration of the term, which is also not the case here. Most of what a “lease” implies, I would say, has nothing whatever to do with this topic.
Clearly there are differences between ebooks and print books regarding ownership and those differences are not desirable. But some of these differences are very similar to other kinds of digital content, for example non-transferable break-seal software licenses. It’s not without precedence as some here are implying.
I guess these kinds of discussions usually force me to reiterate that Fictionwise is very much in favor of unencrypted content. DRM is the only way major publishers currently allow their ebooks to be sold, and our customers want those titles, leaving us little choice in the matter. The complications that you and others are pointing out are just a part of the reason why DRM is not desirable.
With 45 affected ebooks on my Fictionwise bookshelf I’m very interested in this topic. I really appreciate Fictionwise’s efforts to resolve the situation (I have 15 ebooks not yet replaced with eReader versions). Fictionwise’s successful efforts at resolution don’t release OverDrive from culpability in my mind. I can’t get the content in the format I bought it in anymore because of OverDrive. Assuming an average replacement cost of $8+ per book the potential damages from a class action are significant.
Steve P. says:
Not to get off on a rant here… publishers should realize by now DRM isn’t really a solution. Considering there are tools to remove any DRM format from ebooks available DRM is useless at protecting content. Worse than useless because when DRM has a technical or other problem (like this OverDrive mess) legitimate customers are usually left with only the option to use DRM removal tools. In this case that hasn’t happened thanks to Fictionwise’s good sense. In the typical case, though, the frustration a customer experiences dealing with these DRM issues alone turn to resentment. After that many former customers feel justified in stealing content rather than buying it: “I paid for this, they wouldn’t let me use it, so screw them!” I don’t agree that’s the right solution but I can’t say I don’t sympathize. If publisher’s DRM revenue models accounted for the “backlash effect” properly I expect we’d have no DRM.
On a side note Steve P. commented earlier:
While this is strictly true it ignores the fact that Microsoft is an absentee landlord in its Reader activation system. Those of us who had used the .lit format for many years burned through the 5 device activation limit ages ago. I have to request an exception via email for new device activations. These requests go unanswered. This can be worked around by activating a new device with a new email address. That necessitates a new download of the content and puts things in the same situation as Mobi.
Steve P. said:
Well, new “approved” devices, anyway. Do these books work with Free Software — non-proprietary software? Can I read them from say, my Linux phone? And, most importantly, why do I have have to ask someone for permission (ie. “activate”) to use MY book on MY hardware?
LuYu: The Mobipocket version wouldn’t have worked with Free Software either. But sometime this year (assuming nothing goes wrong) there’ll be an eReader reader for Linux
Chris M,
Yes we will definitely have linux in 2009, both mobile linux and desktop. We’re not close enough for me to give specific dates though. We’re in limited beta on blackberry starting this week and if that goes well we should be out soon with general release. Our android port is moving from the planning stage to the implementation stage. So things are really busy around here.
-Steve P.