It started with an article on Quartz by Christopher Groskopf, discussing the way digital media has at least partly “destroyed the concept of ownership” with terms of service that sharply limit what you can do with ebooks, digital music, or videos that you buy. I covered the same matter back in May, discussing a study that showed consumers believe they have more rights in digital media than they actually do; Groskopf touches on this study as well.

On the blog of Melville House, that publisher’s Manager of Direct Sales and Library Marketing, Chad Felix, chimes in, agreeing. He cites a test included in the Quartz piece, quizzing readers on what rights they believe they have in the digital media they buy.

The test challenges several consumer assumptions using the prompt “If I purchase this e-book…”

  • I can copy it for my own use
  • I can resell it
  • I can bequeath it when I die
  • I can give it away as a gift
  • I can lend it to a friend
  • I can put it on all my devices
  • I can keep it indefinitely
  • I own it

In all cases, the answer is “No.” You don’t own that book. You cannot copy it. You cannot resell it. You cannot give it to a friend! You cannot leave it to your children when you die! One day, you open your Kindle to resume reading Fahrenheit 451 and it’s just gone: yep, that’s basically fine. “Owning” an e-book, then, is very different than owning a hardcover or a paperback, which you are free to loan, bequeath, and sell off as you please.

Felix cites this as one of the reasons he prefers paper books to ebooks—you don’t get that problem with a book that’s part and parcel of the physical artifact that can readily be owned or transferred. He adds:

Now, companies could probably educate consumers about this reality. But they don’t. Probably because no one wants to click a button that says “license now” or “rent until rights transfer to a new publisher.” Instead, they bury this information in Terms of Service agreement, which, it is well documented, not very many people read.

On The Digital Reader, Nate Hoffelder picks up Felix’s piece and decries it as “FUD”—the term for baseless “fear, uncertainty, and doubt,” of the sort Microsoft used to spread about its competitors. Hoffelder points out that you actually can do many of the things Felix and Groskopf say you can’t, particularly if the ebook in question is sold DRM-free:

The key point where I disagree with Chad Felix, who wrote the post for Melville House (*), is that his post is predicated on the assumption that DRM and restrictive licenses aren’t just common but absolute, and that there is no other way to sell an ebook.

But the thing is, I think that point of view is based on a misreading of Chad Felix’s post. Nate was reading it as if Felix was discussing what was possible, when it seems clear he was actually talking about what was legally possible.

If you compare the above list with what technology permits, you’ll find you can technically do a lot of those things, especially if you’re buying from a permissive publisher that doesn’t incorporate DRM…but do you have the legal right to do those things? Generally not. Just because you buy a DRM-free ebook from Baen or the Humble Bundle, for example, you’re still not permitted to give a copy of it to a friend. (A lot of people do anyway, of course, and Baen seems to be fairly easy with that as long as it’s not on a major scale, but by the letter of the law, it’s still not strictly legal.)

There are exceptions to many of those things, such as the right to back up your purchases, time-shift, or space-shift, but some of those are disputed or only implied and have never been fully adjudicated by the courts. And it would be wandering fairly far afield from the purposes of the original post, which was to highlight the key differences in the way the law (and terms of service restrictions) treats paper books and ebooks.

Chad Felix works for a publisher—and, indeed, one of the more conservative publishers from a point of view of the changes new technology is bringing to the publishing industry. (Every time you turn around, it seems Melville House has found another bone to pick with Amazon.) He’s part of the establishment, and as such, has a vested interest in seeing to it that people abide by the laws and restrictions that establishment has fomented to keep itself on top. There are all these things you can’t legally do with ebooks. Too bad, so sad; you should buy print if you want to keep all your rights. It would be foolish to expect him to come out and admit that you can do these things illegally, no matter how technically easy it might be.

And it is technically easy. I’d go so far as to say it’s ridiculously so. If there were any justice, the DMCA would no longer even apply to ebook DRM, because the language of the DMCA applies to “effective protection measures” (emphasis mine) and most ebook DRM hasn’t been “effective” at keeping people from circumventing it for years. But even as it continues to apply, the DMCA anti-circumvention provision is effectively toothless. When was the last time anyone was prosecuted for cracking ebook DRM, or even for making available the tools to do so? When has it ever happened?

Tools for stripping the DRM from ebooks have been around since shortly after that DRM was invented. I remember they used to be command line tools, but now some of them have been compiled into modules for the popular ebook management program Calibre. By the letter of the DMCA, I can’t name those modules, but I would be willing to bet it would take you less than a minute of Googling to find out what they are, and perhaps ten minutes or so to download, install, and fully configure one.

And, weirdly, almost none of the major ebook stores have put any effort into blocking these cracks. About the only one who has is Apple, who has historically been very gung-ho about keeping its DRM from being worked around. Nobody else is bothering–even though the same DRM-cracking tools that can unlock ebooks purchased from a store can also unlock library ebooks checked out via Overdrive.

It’s downright strange, when you think about it. The people who run the publishers and ebook stores aren’t idiots, and they can use Google just as easily as can you or I. They have to know by now that their DRM is worthless from a standpoint of keeping out anyone who’s even mildly determined. And yet, they continue to trundle right along still using the same old DRM they have for years with no sign of changing. Perhaps they realize that any new DRM they implemented would just get cracked again anyway, so it would just be throwing money down the toilet for no real return?

As a result, the tech-savvy folks who seriously care about backing their purchases up, reading them on multiple devices, or passing them on to friends and family simply configure their computers so they can crack the DRM to do that and go right on. This might also have the side-effect of reducing the number of complaints this restrictive DRM generates, as it simply doesn’t get in the way of anyone unwilling to let it. They can treat their ebooks as if they “own” them, so they don’t have anything to complain about. We end up needing organizations like the EFF to marshal drives for DRM reform, because the power-users who would otherwise be the most likely to complain about not being able to do the things they want to do simply circumvent the issue and do those things anyway.

So, the ebook industry is in a very weird place right now, where it’s possible for a publisher to be accused of spreading FUD simply for explaining the things you can’t legally do with ebooks. (Felix could have stood to be a little more clear on that point in his post, but even so.) But you know what? Perhaps we could all use a little more fear, uncertainty, and doubt about these obnoxious restrictions if we want for that to change. Because not everyone is a power user.

Indeed, the big thing that made the Kindle so popular with everyone, including older parents and grandparents, was that it was simple enough that people didn’t have to be power users to get some good use out of it. As a result, all these ordinary people have bought big Kindle libraries, which they may not have any idea how to free, or that they even can.

Meanwhile, the generation that’s growing up used to streaming rather than owning their movies and music is also growing up used to buying ebooks that come with these inherent legal restrictions. Down the road, they might simply accept that this is the way things are supposed to be and not seek to change it. And that would be a pity from the point of view of ordinary consumers who want to own the media they purchase, as well as the power users who might prefer not having to break the law when they buy their ebooks.