The Apple anti-trust case continues to have some interesting fallout. The EFF today issued a press release concerning Judge Denise Cote last month dismissing some charges in a related case, trumpeting that Cote had ruled that stripping DRM for fair use purposes is legal. I’ve read the 20-page opinion, and I’m not so sure. Here’s what I know.
The case pertains to Abbey House, the operator of the “BooksOnBoard” e-book store. In March, 2014, Abbey House (and two other defunct e-book store operators) filed suit against Apple and the Agency Five alleging that their implementation of agency pricing drove their stores out of business. In August, Judge Cote ordered them into mediation.
Meanwhile, two of the publishers, Simon & Schuster and Penguin, filed a countersuit against Abbey House. The suit pertained to an announcement Abbey House had posted when it was going out of business, encouraging customers to back up their e-books—and it mentioned they could use Calibre to strip the DRM. “Many argue that this is a legitimate use as long as this is being done for personal use of eBooks purchased, not for piracy. We are told this is in the spirit of the eBook license and that it is common practice.”
S&S and Penguin argued that in pointing to specific software customers could use, Abbey House was engaging in contributory infringement and inducing people to infringe. It also argued that Abbey House was in specific violation of its contracts with S&S and Penguin by doing so, something the EFF news release did not mention.
Cote dismissed the charge of contributory infringement, ruling that the publishers didn’t have a case because they couldn’t point to any specific example of actual infringement—which is to say, cracking the DRM and then uploading the copies to peer-to-peer or even just sharing them with friends, rather than just cracking the DRM for the fair use purposes of backing media up or transferring it to other devices. There has to be an actual infringement for Abbey House to be contributing to for it to be liable for contributory infringement.
This is also why she dismissed the charge of inducing infringement, because the fair-use reasons customers were breaking the DRM were not actually infringing. Cote wrote:
There is no question that Abbey House encouraged the removal of DRM protection. The act of infringement underlying the inducement claim, however, is not the removal of DRM protection. Rather, it is the copying and distribution of ebooks to others after such protection has been removed. The counterclaims do not allege that Abbey House encouraged such infringing acts.
The contractual claims relied on language in the contracts. Cote dismissed the Penguin claim because the clause Penguin was using, insisting that customers had to agree not to break the DRM when they bought the books, applied only at the time the books were sold; the contract didn’t say anything about breaking it afterward.
However, Abbey House didn’t quite get off so lucky in the Simon & Schuster contract violation claim, because that contract had specific language requiring Abbey House to sell e-books with DRM on them and let S&S know if they found out about anyone breaking it, and the fact that Abbey House was encouraging customers to break it for purposes of fair use was beside the point. It might not have been a copyright violation, but it was still in violation of the contract. She declined to dismiss that particular charge.
The thing that puzzles me here is how the Digital Millennium Copyright Act applies here—or perhaps how it doesn’t. The case doesn’t mention the DMCA at all, and yet 17 U.S. Code § 1201 prohibits circumventing DRM at all for any purpose, whether fair use or not, and “traffic[ing] in” anti-circumvention devices. This has commonly been held to mean that you can’t even tell someone what software to use to remove DRM. Why did the publishers not throw in a DMCA anti-circumvention violation, instead of just going with the copyright infringement charges?
Does Cote’s ruling mean we can go ahead and crack DRM with impunity as long as it’s for fair use? Not yet—it’s just a district court ruling, and it has to survive appeal before becoming a precedent. And given that it seems to fly right in the face of the anti-circumvention provision, I’m not sure how it can. But it might still be a good sign all the same.