Home » Ebooks, Legal Stuff » Microsoft’s Ebook Apocalypse Shows the Dark Side of DRM

Microsoft’s Ebook Apocalypse Shows the Dark Side of DRM

2 July 2019

From Wired:

Your iTunes movies, your Kindle books—they’re not really yours. You don’t own them. You’ve just bought a license that allows you to access them, one that can be revoked at any time. And while a handful of incidents have brought that reality into sharp relief over the years, none has quite the punch of Microsoft disappearing every single ebook from every one of its customers.

Microsoft made the announcement in April that it would shutter the Microsoft Store’s books section for good. The company had made its foray into ebooks in 2017, as part of a Windows 10 Creators Update that sought to round out the software available to its Surface line. Relegated to Microsoft’s Edge browser, the digital bookstore never took off. As of April 2, it halted all ebook sales. And starting as soon as this week, it’s going to remove all purchased books from the libraries of those who bought them.

Other companies have pulled a similar trick in smaller doses. Amazon, overcome by a fit of irony in 2009, memorably vanished copies of George Orwell’s 1984 from Kindles. The year before that, Walmart shut down its own ill-fated MP3 store, at first suggesting customers burn their purchases onto CDs to salvage them before offering a download solution. But this is not a tactical strike. There is no backup plan. This is The Langoliers. And because of digital rights management—the mechanism by which platforms retain control over the digital goods they sell—you have no recourse. Microsoft will refund customers in full for what they paid, plus an extra $25 if they made annotations or markups. But that provides only the coldest comfort.

“On the one hand, at least people aren’t out the money that they paid for these books. But consumers exchange money for goods because they preferred the goods to the money. That’s what happens when you buy something,” says Aaron Perzanowski, professor at the Case Western University School of Law and coauthor of The End of Ownership: Personal Property in the Digital Economy. “I don’t think it’s sufficient to cover the harm that’s been done to consumers.”

. . . .

Presumably not many people purchased ebooks from Microsoft; that’s why it’s pulling the plug in the first place. But anyone who did now potentially has to go find those same books again on a new platform, buy them again, and maybe even find a new device to read them on. For certain types of readers, particularly lawyers and academics, markups and annotations can be worth far more than $25. And even if none of that were the case, the move rankles on principle alone.

“Once we complete a transaction you can’t just reach into my pocket and take it back, even if you do give me money,” says John Sullivan, executive director of the nonprofit Free Software Foundation. “It’s not respecting the freedom of the individual.”

. . . .

More than anything, Microsoft’s ebook rapture underscores the hidden dangers of the DRM system that underpins most digital purchases. Originally intended as an antipiracy measure, DRM now functions mostly as a way to lock customers into a given ecosystem, rather than reading or viewing or listening to their purchases wherever they want.

. . . .

“This is why we call DRM media and devices defective by design, or broken from the beginning. There’s self-destruction built into the whole concept,” Sullivan says. “This is still the prevalent way of distributing media. That companies still pull the plug is still surprising and frustrating.”

Link to the rest at Wired

PG gently suggests that any lawyer who annotates a copy-protected ebook which resides online is not terribly wise.

PG probably has a moral (but not legal) obligation to remind one and all that, in the click-to-accept license agreement they entered into when they bought their MS ebooks, purchasers almost certainly agreed to not circumvent any copy protection software locking those ebooks up.

He will also remind the same group that, regardless of whether the license specifically prohibited circumvention, hacking copy protection is still illegal under the Digital Millenium Copyright Act, specifically 17 U.S.C. 1201. Violating this prohibition carries both civil and criminal penalties.

That said, PG suspects Microsoft will turn a blind eye to any evidence those who licensed ebooks from them have hacked the copy protection in order to make copies of the text.

However, publishers of the ebooks may not react in the same way.

PG hasn’t checked into the nature of Microsoft’s ebook copy protection or the copy protection used by publishers of ebooks sold by it, but, at least some copy protection software (I’m looking at you, Adobe) has, at least in past days, collected information about ebooks residing on computers, tablets, ereaders, etc., and sent it back to the mother ship. In 2014, this included ebooks using Adobe’s copy protection software and other ebooks that did not use Adobe software. See this post and related posts on The Digital Reader for the gory details.

PC suggests that those who have purchased ebooks from Microsoft decide whether they care about losing any of them. If the answer is yes, these readers can use some or all of the money they receive from MS to buy replacement copies somewhere more reliable.

If any visitors have made more than cursory annotations to any Microsoft ebooks, PG suggests the safest route from a DMCA violation standpoint would be to contact the publishers of those ebooks and ask for their help in salvaging the text and annotations. (Go ahead and contact the authors, too. They may have more reputational capital at stake than the publishers do.)

PG thinks Microsoft deserves a lot of heat for orphaning ebooks it sold without a way for purchasers to preserve access to them. For example, did MS think to contact Amazon to see if it could provide MS book-buyers with copies of the same titles from Amazon? If not, why not?

Why not throw some brains into a solution that won’t alienate Microsoft customers instead of refunding the money the customers spent plus $25? If the customers wanted money instead of books, they probably wouldn’t have purchased any books from MS in the first place.

For PG, nothing else has so effectively communicated the message, “We’re Microsoft and you’re not,” for a long time.

For the record, PG has not ever purchased any ebooks from Microsoft and is unlikely to do so in any future life.

If anyone does attempt to salvage MS ebooks, PG would be interested in any details of their experience they might care to share. If they don’t want to leave a comment, they can email PG via the Contact link on TPV.

If PG were advising any of the publishers (particularly publishers of books for readers in various learned professions), PG would suggest that the publishers do everything possible to collect contact information regarding any of their ebook purchasers impacted by Microsoft’s decision and take affirmative steps to communicate with those readers and offer to provide replacement ebooks in one of the other ebook formats in common use.

 

Ebooks, Legal Stuff

24 Comments to “Microsoft’s Ebook Apocalypse Shows the Dark Side of DRM”

  1. Which is why my ebooks are DRM-free on Amazon. DRM hurts honest readers far more than it ever stops/slows piracy.

  2. Terrence OBrien

    I would be delighted if Amazon took back every eBook I have ever purchased. Take them all, each and every one.

    I suspect there would be a stampede if Amazon announced the buy back. In days gone by, most of my paper ended up at Goodwill and I got nothing.

    • I would not be delighted. I guess I am just a crabby old-timer. According to the Kindle Terms of Service, Amazon can, at any time, deny me access to the books to which I have purchased license to read. Gone. In an instant. No buy back. Just gone. Service changed or terminated. If you protest, the dispute will be decided by a binding arbitrator of our choice.

      I accept this as part of the licensing deal, a cost of the convenience of Kindle and eBooks in general, but I don’t like it. I don’t like it that attempting to protect my Kindle eBooks from fiat is an easy crime that I choose not to commit. But it’s reality. Having licensed access to an eBook is not the same as owning a book. I wish it were, but we live in a digital world where book ownership has been replaced by temporary license.

  3. Microsoft’s epub DRM wasn’t cracked because they never sold enough books to make it worth any cracker’s time. Which is why they’re getting out of the business. The time to get in was roughly the time they shut down MS READER, not last year.

    As is, no applocked DRM has (to my knowledge) ever been cracked, for the same reason. None has sold enough or lasted enough to make it worthwhile.

    Fortunately, Microsoft is giving out full refunds which should make all three of their paying customers happy. 😉

    Full refunds is way cheaper than giving out DRM-free copies of books they don’t own. Contractually, they almost certainly can’t. Even BAEN is unable to host ebooks they no longer sell and they never used DRM.

  4. Something that was missing from both the article for MS and the history for Amazon — yes, it says they refund the purchase price, all good. But is MS (and Amazon) paying all of that back themselves? Or, like with returns, are they dinging the original publishers too? That’s something nobody seems to be able to answer in the articles…

    Also not sure why publisher X would have any incentive to get the contact info to try and offer a free replacement copy in another format, or even a paid replacement. It’s not like the publisher cares much who you buy it from. On the other hand, it would be a great boon for someone like B&N or Amazon to get that info. 🙂 Or to offer some sort of “conversion” deal — log into your account, share it with Amazon, and Amazon will add all of your books into a wishlist for you to “click and buy”. Or even all of the books bundled into one giant zip file, with bundling discounts.

    Just a thought…

    P.

  5. One word: Calibre.

    • For Amazon, Nook, and Adept retailers (like Google and Kobo): yes.
      For Apple and Microsoft: no.

      Best rule of thumb: without Calibre or DRM-free, don’t bother.

  6. When I was a young lawyer, the government agency employing me decided that my highest & best use was helping to decide what books should be “excessed” from the law library we had, on the occasion of our moving our offices. Among the books to be discarded was Blakemore on Prohibition 3rd Edition, 1927), so I abstracted it from the discard bin in order to give it the prominent position it deserved on my liquor cabinet (a massive but beautiful wrought iron wine rack with shelves for liquor bottles & hooks for beer steins), where it has resided for several decades.

    Just for the heck of it, I actually read the introductory material in the book, and found that Blakemore was actually a pretty good legal writer. It was a pleasure to read his comments. (I also ran across a volume of the American Law Library which he wrote, covering Property Law, which I bought & occasionally dip into just to enjoy his writing.)

    Anyway, years later, when I was reading the DMCA, it struck me that it seemed familiar, & eventually I realized that the drafters of the DMCA must have been reading the Volstead Act – either that, or they had traveled down the same path of reasoning that the Volstead Act used. The structure & strictures seem to be the same.

    As I understand it, under Prohibition, it was not actually illegal to possess booze. What was illegal was to transport it, or engage in commercial activity involving it. So you could make the stuff in your basement, & drink it on your front porch, but if you took a bottle over to your neighbor’s house, you violated the law.

    Same thing with the DMCA – it does not actual appear to me to be illegal to strip DRM from your electronic media. But it is illegal to distribute or engage in commercial activity with the stripped file.

    You can see other parallels between the the DMCA & Prohibition – pirate sites are speakeasies, for instance, and people who are knowledgeable enough to brew their own are like people who know enough tone able to strip DRM.

    The upshot for me is that I have a full backup of all my ebooks which will remain available to me no matter what the distributors do, and which I will be able to convert to any filetype should the need arise.

    • Section 1201 contains an explicit prohibition on stripping “copyright management data” (which is elsewhere defined to include DRM) from electronic media… followed by an allowance that the Copyright Office can set up a list of exceptions that have to be reviewed every three years. Unfortunately, interdevice portability has never gotten a uniform treatment; it always requires another reason (such as “preserving obsolete file formats tied to no-longer-available hardware in presently usable form”).

      Part of the problem with the DMCA is that it’s actually in two parts of the statute, for radically different purposes.

      • When I was researching the stature, many years ago, I concluded that when you work your way through the whole statute, & see how all the parts work together, it turns out that the owner of a file can strip the DRM for noncommercial – i.e. personal – uses. It’s like a lot of statutory law, in that you don’t find a positive declaration of such an exception, but rather, a negative implication resulting from the way the whole statue appears to operate. “Macavity’s not there.”

        And since I also believe that there’s a colorable legal position supporting the customer’s ownership of files purportedly being licensed for use – at least the ones I buy – I am comfortable with stripping DRM from such files – again, for personal use.

        YMMV. I don’t see a scenario for the issue ever actually being resolved by litigation.

        • If you’re dping it for the “right” reasons — such as disability access — there are sufficient loopholes in the Copyright Act to present a colorable defense. (They’re not in Chapter 12.)

          Telling someone else how to do it, or making available tools for people to do it… may be a different issue. And that’s before getting to the question of whether those tools, if they crossed international boundaries, might violate import/export restrictions (in the same way that it was illegal to ship, or even take on one’s own laptop, a copy of Windows XP to Iran in the early 2000s).

          Frank Snepp would be outraged, amused, or both. But not at all surprised, since the basis of his problems devolved to contract law and an equitably imposed remedy for breaching it.

          * * *

          As far as the “licensed v owned, by fiat of vendor” goes, it’d make a great law school exam question for a UCC course, wouldn’t it? Especially if one brought in the parallel problem in the Patent Act (hint: any rational answer is interestingly different and similar). Which is rather ironic given that both patents and copyrights have their constitutional authority in the same ill-written clause (Art. I § 8 cl. 8).

  7. (Apple iBooks DRM has been cracked according to what I’ve read.)

    Calibre is free, but I’ve used it for years & periodically donate to the creator because it’s such a useful program.

    • What I’ve heard is Apple’s Fairplay cracks don’t last. Apple is very different in updating it to block cracks. Not so much for the books but for the music.

      • If you search around on the internet, you will find a reliable source on cracking DRM which asserts that Apple’s ebook encryption has finally been cracked. I can’t say it’s absolutely true, because I don’t buy ebooks from Apple, largely because I find reading ebooks on an LED screen tiring.

        Music is a different proposition. Streaming has changed the playing field, in part because it’s so cheap to simply buy yearly access, & in part because so much access is free if you aren’t deeply into quality of sound. So basically, there’s no need to break the DRM. And anyway, if you really want to, you can just record the music using Audio Hijack. As a practical matter, DRM is irrelevant to music AFAICS.

        Several years ago I remember someone trying to set up a kind of Netflix for ebooks, but that failed. The closest thing I’m aware of is Kindle Unlimited.

  8. I dislike laws preventing DRM removal or circumvention. These include provisions of both the DMCA in the US and the Copyright Act in Australia. They are unenforceable in a practical sense in the vast majority of cases and are ignored by many. Their main achievement is now not to prevent piracy but to lock consumers in to so-called “ecosystems” where they are often exploited. And, of course, consumers’ access to the products they have paid for is always at risk.

    • I agree with you about locking customers into an ecosystem – if not intentional, it’s certainly a side effect.

      Many years ago, Sony had an ebook reader that was much better than the Kindle of its time. So I would convert all my Kindle ebooks epub format & read them on my Sony T1. These days, I much prefer my Kindle Oasis, so I don’t have to do much conversion, since most of my purchases are in AZW or mobi format.

      My suspicion is that it was movies that drove the push for DRM & the DMCA. That’s where the money is. The thing about DRM is that it doesn’t have to prevent all piracy – or even sharing. It just has to be enough of a nuisance that enough consumers will just pay to watch the movie from legitimate sources.

  9. In addition to your excellent take, PG, I would remind readers that a license for an ebook really is the equivalent of the license you purchase to watch a film at a movie theater when you buy a ticket. You don’t own the film. You license the right to watch it.

    Likewise, you don’t own an ebook whether or not it has DRM enabled. You only license it to read it one time, or however many times you can read it before the license is revoked, if it is.

    • I was never engaged professionally in that area of the law, but in my arena, federal taxation, we sometimes had to figure out exactly what kind of property rights we were dealing with.

      The one thing that is always true when dealing with transactions is that just because one party to a transaction characterizes it in a particular way – a loan, for instance – does not make it so.

      In the case of ebooks, the same principle applies. Just because Apple or Amazon calls something a license doesn’t make it a license. You have to look at all the facts of the transaction. My own conclusion when I looked at the cases (this was many years ago) was that a judge might well decide that the so-called license of an ebook to an individual, with nothing more than a one-sided contract imposed by one of the parties on the other, was a sale, not a license. (It might be that this possibility is why Microsoft is refunding the money to the buyers of its ebooks.)

      I no longer have easy access to the legal resources necessary to update my research, but I’ll bet the issue has not yet been decided by the courts – the reason being that I can’t think of any situation in which Apple/Amazon would bother bringing a lawsuit to test the question. For one thing, even were the chances of losing remote, the consequences of losing would be great.

      If someone knows differently, I’d be interested in knowing the case citation so I could read the opinion.

      Now, if ebooks were sold like movies – streaming, X number of days to view then the access disappears – it would make a big difference. That would be more like a paid lending library.

  10. To keep my readers happy (and because I’m a reader too,) I offer my books on a PayHip store in 3 DRM-free formats. And yes, I do encourage them to make a back-up.
    Because why not?
    It took a while to let people trust a new platform, but I see more traffic, which is a win-win for both them and me.

    Piracy? Oh sure, it happens. But life is short. The WIBBOW rule applies.

  11. Technically, DRM is a difficult problem. First, encryption is an elusive moving target– what was considered secure encryption ten years ago is not secure now, and quantum computing threatens to render most current encryption algorithms easy to crack, although quantum computing has a long way to go. Consequently, DRM has maintenance issues.

    The bigger problem is that once a person has gained legitimate or illegitimate access to a protected digital entity, no one has as yet developed a way of preventing them from recasting the entity into an unprotected form. If I can read, listen, or view something, I can figure out a way to capture it and reproduce it. Like the old time video pirates who carried cameras into movie theaters, I could scan pages on my Kindle, and convert them back to digital text if I had to and bypass all encryption or other locking. Essentially, most DRM deracination schemes do this more efficiently by directly accessing the unlocked digital content.

    My own solution, which I don’t see much chance of materializing, is a distributed ledger (blockchain, if you will) that establishes and records transfer of ownership of the digital entity rather than obsessing over access. That would be analogous to current handling of physical book theft. We don’t try to stop a thief from reading a stolen book, we prove that it is stolen and go to law for punishment. Sometimes it’s worth the trouble, other times not.

    @harmon : Thank you. Very much appreciate your legal comments. You confirm my own fumbling suspicions on the law.

  12. Don’t go all the way to “confirm,” because as I said, I never practiced in this area, & it’s been years since I’ve visited the subject!

    Most people think of DRM as a barrier to copyright violation, and your blockchain notion seems workable as a solution to that.

    But both blockchain & DRM are reactionary mechanisms. Technology changes things, and it seems like an intermediary stage of any technology involves appearing to be a variation on the previous technology.

    So car engines wound up in the front of the car, when from what I’ve read, in the middle or the back of the car works better. What would an ebook look like, free from the constraints of regarding it as electronic paper?

    In the case of books, my own concern with DRM has more to do with the ability to alter the presentation on the screen. Some fonts are more comfortable to read than others, some margins and line spacings are better, & full justification is an abomination in the face of the Lord. Things have developed in that direction, but I still find books I need to tweak via calibre for more comfortable reading.

    But a real ebook would allow for communal reading, for instance. Maybe in the form of a dedicated social media stream linked to the book in a fashion that allows readers to comment as they read, & respond to other comments. Or maybe an ebook could be blogged in some permanent fashion – I’m currently “rereading” Proust by taking a daily dose of a terrific blog written several years ago (182 Days of Marcel Proust http://proustproject.blogspot.com – if you’ve always wanted to read In Search of Lost Time, start now guided by this blog; if you have already read it, it’s a great revisitation.) I can imagine a book being issued with the capability of blogging being a part of the book, rather than extraneous.

    DRM, & the mindset behind it, gets in the way of the potential.

  13. Terrence OBrien

    I’d say the whole purpose of DRM has been to keep Aunt Gracie from easily sharing the lastest cozy mystery with all 348 members of her sorority email list.

    It has been a success. We will hear how easy it is to do something to get around this, how any nine-year-old can defeat DRM, Calibre functions, and pirates. But, transaction costs separate what can be done from what is actually done.

    • Nah, it was Disney movies that drove the whole thing. I mean, who reads “books” anymore…

Sorry, the comment form is closed at this time.