Digital Media and Library Copyright talk notes

(These are notes from my presentation at the Library Freedom Project‘s Digital Rights in Libraries unconference, cleaned up into a readable format; meant to accompany the slides. I would not consider these notes publishable as a standalone article, but hope they will be useful to those who could not see the presentation or who want to remember what was said! See the slides from the panel, including the first two presenters, Tim Vollmer and Lila Bailey. Missing the extemporaneous rambling, which I will be happy to reproduce in more or less similar fashion at future in-person meetings, especially if caffeinated beverages are involved.)

Some issues in digital media and library copyright:

  • Digital first sale
  • DRM/anti-circumvention
  • Terms of use

Digital first sale:

One of the most important safety valves in copyright is the “first sale doctrine“. When you buy a physical copy of a copyrighted work, the copyright holder doesn’t get to control what happens to it after that: you may sell it or otherwise dispose of it as you see fit without permission (and even against the copyright holder’s wishes). Early case: prohibited resale below a given price.

First sale allows libraries to exist (and other things like it); it also allows used book/media stores. It makes sense to have a clear separation there or you’d have these objects you couldn’t get rid of. (US law likes to allow people to have control over property once they have bought it in general.)

Digital is theoretically great for libraries, you don’t have to have a physical thing taking up space, you have a copy of a thing. But there are hidden costs, because basically there is no digital first sale in the US.

(Note: “first sale” in general covered by Lila in first part of presentation; basically, copyright holders can no longer use copyright to control movement of physical goods containing copyrighted works after authorized sale to first owner.)

Why no first sale? You must make a copy to transfer a digital work, and first sale doesn’t permit copying, only transfer of owned item. Also you might not own a copy of the work: you got a license to use one, while the copyright holder still has control over the “original”.

Lack of digital first sale is why the rest of these issues can still be a problem. For print media, you bought it, it was yours, the copyright holder had no further control over what you did with it. When you have a digital copy, the copyright holder keeps some of that control. Long after you’ve “bought” a digital copy, the copyright holder can continue to say what you may or may not do with it, can even take it away from you. (It may break contract with you, but penalties for contract breach are often small. Note example of 1984 being pulled from Kindles.)

This is getting taken to absurd levels: John Deere saying you don’t own your tractor, you have licensed the right to use it. This may help the situation: if everyone is angry we may get legislative reform. Legislative reform may be only way to fix this. For now: know that this is an issue and consider it as part of the cost when you are deciding whether to buy print or digital resources for your institution–for something where it is important that you have a permanent copy that cannot be restricted, consider print instead.

More links:

DRM:

“Digital Rights Management” — sounds like what we all came to this conference to hear about, digital rights management. The voice of RMS in my head would say that you should say “Digital Restrictions Management”.

We all know something about DRM and everyone hates it, everyone’s angry about it. And there are about 10 million reasons. I’ll start talking about it by saying what makes me most angry about it: it makes the default protections of copyright a sham. The government won’t stand behind its own built-in protections for the public, will allow companies to enforce things that wouldn’t be permitted in analog media. DRM restrictions can go beyond what copyright would restrict and be illegal to break.

Stealing a great statement from my partner Greg Maxwell (who is a cryptographer): “Information wants to be free” is the truth. But it is not an aspirational statement, it’s a law of nature.

And DRM is one of the ways people try to get around that law of nature. We often make attempts to control laws of nature (we dam rivers to stop them from flowing naturally, we use pesticides to stop organisms from reproducing) and we don’t always get this right. When we don’t know what we’re doing, we can get things very wrong and destroy a fragile ecosystem. We’ve learned at least a little bit about this in the physical world but we haven’t quite figured it out in the digital.

What is DRM? Basically, any technical restrictions that carry a legal penalty for getting around it. (When circumvention is outlawed, only outlaws will circumvent DRM.) Next presenter will talk about function & privacy issues. Technical solution to a social problem, and like all such, an imperfect one.

Note that it can be true that the author wants to let you break the DRM but you could still be in trouble (mainly where a third party applied: many distribution platforms apply DRM whether author wants it or not).

Limited exceptions in sec. 1201: security research, library acquisition decisions (but not any other library purpose), a few others. Other exceptions every 3 years by a cumbersome rulemaking. (New Librarian of Congress to be appointed may bring changes, we’ll see.)

DRM prevents legitimate uses: reading on non-standard devices (including assistive devices), reading on computers where the operator is not allowed to download software, excerpting for fair use in most contexts. DRM creates vendor lock-in, compromises privacy (tracking reading records), normalizes per-use permission culture/non-ownership. DRM makes life hard for libraries and archives: it often depends on services/media/hardware being around and working that will not last long and does not come with guarantees.

It used to be functionally worse and people avoided it because it didn’t work, now it works better (in the technical sense) and you may not realize how it is harming you until you already have invested in encumbered resources, and that’s harmful.

Many commercial vendors use DRM, including many popular in libraries and popular with consumers–Overdrive, Amazon, iTunes store, etc.

The good news is that for almost any DRM encumbrance you may find that someone has broken it. The bad news is that it’s illegal for them to help you, or for you to help others, even where you are allowed to break it yourself. Where exceptions are permitted, you may possess tools, but it still may be illegal to distribute them: you know how to do it, but can’t help your friends and patrons even though their uses would be legal and they do not know how to do it themselves. (Case law has been split on distribution of tools for permitted uses.) Some librarians/advocates choose to help with wink and nudge (suggesting search terms, etc) to fulfill their mission to their patrons.

Anti-circumvention penalty ties to infringement of copyright (for example, case about garage door openers, where no copyright interest so no penalty for circumvention), but making fair uses or copyrighted material has not been permitted.

You can search for DRM-free sources: best guide at DefectivebyDesign.org, covering books, movies, music; you can add to it if you know of any.

Sometimes resources are hard to access not because of DRM, just technical difficulty. Tools exist for help, especially for reading and format conversion. Some examples: Calibre is an ebook reader for many formats, many browser plugins for popular ebook formats, web and command line conversion tools for other file formats.

Other resources:
Brief summary of DRM and libraries from ALA, and DRM tip sheet.

Terms of use:

Copyright is not the only way rightsholders can impose legal restrictions on library media. Terms of use can also impose restrictions that go beyond copyright, such as only permitting a limited number of copies, or only a limited number of times borrowed, or restricting availability of formats. Terms of Use are contract restrictions: maybe between you and a vendor, or maybe between a patron and a website. The penalties are different that copyright infringement (usually actual damages) but still particularly as an institution you want to avoid them.

Example restrictions: many “free” resources allow only personal, noncommercial use (as a library, this is OK, but your patrons may have other ideas for what they need).

Big problem with Terms of Service: they’re hard to read, even for lawyers, ain’t nobody got time for that. (TOS;DR says “I read and understand the Terms of Service” is the biggest lie on the internet; everyone just clicks OK.) Drafted in company’s favor, often just copied boilerplate, not considering public interest or even their own customers/users, may restrict your rights or compromise your privacy. (May allow selling of data, tracking of user behavior, or restrict kinds of reuse, may also require arbitration instead of court, etc.)

You can sometimes negotiate these, especially with services you are paying for. (Not often with websites you access.) And you should; get together with others who may share your interests (consortia members? other local institutions?).

Also there are services to help you read and understand ToS and find providers who have privacy and rights-friendly terms. See TOS;DR (summaries of TOS and ratings of sites) and TOSBack (a terms of service tracker for many major sites), and then check out this awesome comic about Terms of Service, Big Data, and your rights.