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.


  1. I suspect that because BooksOnBoard could sell internationally their contract language couldn’t be specific to the US DMCA. They probably had to use generic “copyright infringement” language in the contract.

  2. Point of order — calibre does not strip DRM.

    calibre is a modular program with a plugin structure, and you can install a plugin which eases the process of using outside tools to strip DRM, but that is not “calibre” any more than Adblock Plus and HTTPS Everywhere are “Firefox”.

    It appears Abbey House didn’t know the difference, and both EFF and Teleread are taking their word at it?

    • I didn’t really think it was worth quibbling over semantics. Even if a plugin does the actual work, it’s still Calibre that uses the plugin to do it. I’ll wager if you google “remove DRM with Calibre” you’ll find clear instructions on how to do it in the first result. And you can’t use the plugin without Calibre. So if they said enough that people were able to figure out what they meant and do it, why complain they got it wrong?

      Anyway, it’s common usage to say that you’re going to do something with the overall program, rather than with a plugin. If I’m going to watch a movie on my computer, I’ll say “I’m going to watch [movie] in VLC.” I don’t say “I’m going to watch [movie] with the DIVX codec,” though it is, in fact, the codec plugin that does the actual work of translating the movie so VLC knows how to show it. I’ve seen plenty of people talk about “removing DRM with Calibre” and I always knew exactly what they meant.

  3. The plugin is just a couple individual tools which are also available standalone, bundled into a handy plugin package which saves you the need to install python, tkinter, and crypto libraries if you already have calibre.

    I can unzip the plugin and run the decryption tools using a python shell… or use the copy bundled with a Windows drop target instead of a calibre import statement.

    Unlike a codec which is an integral part of VLC and is in fact bundled with VLC, this is far more similar to Firefox, where there are community repositories maintained AND SANCTIONED by Mozilla, while you can also install your own.

    Specifically, neither Mozilla nor Kovid Goyal are responsible for third-party, unaffiliated plugins (except if they host them) whereas VideoLAN is responsible for the codecs they distribute with VLC.

    There is a reason the DeDRM plugin is absolutely not hosted at and maintained by the plugin updater (and similarly, MobileRead does not allow detailed discussion/howto’s to be hosted on their servers) — so it is doing a disservice to Kovid, I believe, to allow such confusion to be perpetuated.

    If it were simply a matter of semantics, I wouldn’t care 😛 but allowing calibre to be associated in such a way, with a tool that is still very much in a legally gray zone, *could* have legal repercussions.
    It would be far easier for publishers to target “Kovid Goyal, who runs” than to target “apprentice alf, who has a wordpress blog _here_” if they tried to have the tools shut down.)
    And Kovid also makes the distinction, so I respect his wishes.
    It would be preferable to always make it clear that the tools are a third-party addon, just in case.

  4. Reread the next-to-last paragraph of the article above. That’s the important part.

    [In the US] Removing DRM isn’t itself a violation of copyright (probably; determining violation of copyright is a case-by-case thing because Fair Use is a case-by-case thing). Removing DRM from e-books is almost certainly a violation of DMCA. The countersuit at hand is fatally flawed in that it focuses on copyright and ignores DMCA.

    As Judge Cote wrote, “S&S and Penguin’s arguments … conflate the removal of DRM protection with the infringement alleged in the counterclaims. 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 e-books to others after such protection has been removed. The counterclaims do not allege that Abbey House encouraged such infringing acts.”

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