Indie booksellers sue Amazon and big publishers over DRM (but have no idea what "DRM" and "open source" mean)

A group of independent booksellers have filed a suit against Amazon and the major publishers for their use of DRM, which, the booksellers say, freezes them out of the ebook market:

Alyson Decker of Blecher & Collins PC, lead counsel acting for the bookstores, described DRM as "a problem that affects many independent bookstores." She said the complaint is still in the process of being served to Amazon and the publishers and declined to state how it came about or whether other bookstores had been approached to be party to the suit.

"We are seeking relief for independent brick-and-mortar bookstores so that they would be able to sell open-source and DRM-free books that could be used on the Kindle or other electronic ereaders," Decker explained to The Huffington Post by telephone.

Such a move would lead to a reduction in Amazon's dominant market position, and completely reshape the ebook marketplace.

A spokesman for Fiction Addiction declined to comment as legal proceedings are ongoing. The other plaintiffs and Amazon did not respond to a request for comment.

That sounds great, but when you read the complaint, you find that what they mean by "open source" has nothing to do with open source. For some reason, they're using "open source" as a synonym for "standardized" or "interoperable." Which is to say, these booksellers don't really care if the books are DRM-free, they just want them locked up using a DRM that the booksellers can also use.

There is no such thing as "open source" DRM -- in the sense of a DRM designed to run on platforms that can be freely modified by their users. If a DRM was implemented in modifiable form, then the owners of DRM devices will change the DRM in order to disable it. DRM systems, including so-called "open" DRM systems, are always designed with some licensable element -- a patent, a trademark, something (this is called "Hook IP") -- and in order to get the license you have to sign an agreement promising that your implementation will be "robust" (implemented so that its owners can't change it). This is pretty much the exact opposite of "open source."

It's a pity. I empathize with these booksellers. I hate DRM. But I wish they'd actually bothered to spend 15 minutes trying to understand how DRM works and what it is, and how open source works, and what it is, before they filed their lawsuit. Grossly misusing technical terms (and demanding a remedy that no customer wants -- there's no market for DRM among book-buyers) makes you look like fools and bodes poorly for the suit.

DRM Lawsuit Filed By Independent Bookstores Against Amazon, 'Big Six' Publishers [Andrew Losowsky/Huffington Post]


  1. I am looking for work at the moment and I see some employers asking for experience in open source when they mean they want experience in a particular application which they use which happens to be open source.

    Local book sellers are losing out, just like music retailers. So much of this stuff is online now. Thats the problem. I would go to an independent book seller online, not at the end of my street.

    I would love to see more old novels available online. There is a huge gap between books which Gutenberg can carry and books which are in sufficient demand to be scanned and sold as e-books. I assume that the copyright is all over the place and very expensive to straighten out.

  2. Besides everything else they ARE free to sell DRM free eBooks (lol)  They still need a platform that secures those books and tracks sales…but all – for instance – 660 plus books from my Crossroad Press are DRM free, and include major authors of all stripes.  You’re right, they are just looking for some independent version of the same old thing.

    1.  Yeah, that’s my experience as well. There is a handy check box for adding yummy DRM or not. I choose ‘no’.

  3. In other news, sellers what magic ‘open source’ DRM that cracks down just as hard on their customers but somehow doesn’t render them subject to the DRM-vendor’s market power in the same way that DRM does. Go cry me a river.

  4. Interesting critique, but the point of the lawsuit isn’t the DRM, it’s about the tying arrangement between Amazon and the publishers. This is about the Sherman Act, not about the technology platform. While the critics are geeking out over terminology, I suspect that some of them actually do care about the fact that the publishers have enabled Amazon to maintain their monopoly on e-books. Collusion, anyone? 

    1.  I have written approximately 10,000,000,000,000 articles in Publishers Weekly, the Guardian, the Booksller, Library Journal, etc etc explaining that DRM paves the way for monopolistic practices, eg tying.

      However, the actual *complaint,* filed with the court, grossly misuses technical terms, in ways that make a nonsense of their case. Complaining that Amazon did not use an “open source” DRM that let others interoperate with the Kindle is like filing a lawsuit complaining that Amazon did not use a “gibbous” DRM or a “lunar” DRM. It is a complete nonsense. It makes their case weaker because it makes their case incoherent.

    2. Amazon doesn’t have anything close to a monopoly on e-books.  I know that word gets tossed around a lot carelessly, but there are plenty of places you can buy e-books.   The Sherman Act won’t come into play at all until Google, Sony, B&N, Apple and everyone else that sells e-books stops doing so.  You can’t have a monopoly with competition.   There’s no e-book cartel, everyone is competing with each other.  If Google starts selling cheaper than Amazon, Amazon will cut their prices and margins.   That’s just how things work.

      The publishers wouldn’t be suing anyone if there was actually a monopoly, since that tends to result in higher prices as there’s no competition and Amazon would be in a position where they’d have to pay a higher rate to publishers or they’d just remove their books and nobody would make any money.  In this case, a monopoly would do absolutely none of the sellers any good.   It’s not even collusion, since the sellers aren’t artificially keeping the prices up or down, the publishers are. 

      Really none of what’s going on here makes a whole lot of sense to anyone paying attention.  

    3. The lawsuit is that they want to use the Kindle, but they don’t want to go through Amazon. However, they still want to apply DRM, and they don’t understand any of what they’re trying to do. They just know they want DRM because it “stops piracy,” and they want to be “on the Kindle” but they don’t want Amazon to get a cut.

      1. Under current US law (DMCA), it is actually a really big problem for anyone else to be allowed to apply someone else’s DRM scheme.  “Interoperable” DRM isn’t something which merely doesn’t happen; it’s something that _can’t_ happen without risking the nuking of an industry.  Competing companies using each other’s DRM would be a disaster(*).

        Suppose I knew the secret for applying DRM, compatible with Amazon’s, to a file.  The Kindle would be able to display the plaintext.  Sounds good, right?  But since I didn’t enter into an agreement with Amazon (e.g. say I reverse engineered their DRM scheme) then THEY ARE SELLING A CIRCUMVENTION DEVICE!  They have no evidence which suggests I (the copyright holder) ever authorized Kindle users to descramble my copyrighted work, so the descrambling becomes circumvention, and they’re trafficking in a device which does that, and I can get an injunction to remove the Kindle from the market, plus a bunch of money from Amazon.  Basically, every person in the world who is able to write a book, potentially has Amazon over a barrel.  There’s no way they can afford to settle with us _all_.

        On the other hand, if instead of reverse-engineering the DRM, I get a license from Amazon, then they can make sure that the terms of the license say that I authorize all Kindle users to display my plaintext.  That makes the “bypassing of the technological measure which limits access” NOT be “circumvention” (these are key words in DMCA) so if I sue them for trafficking in circumvention devices, or if I sue their users for reaing the books I sold them, then Amazon has this piece of paper to show the court, where I say that I granted authorization.

        The only way to be an Amazon competitor and NOT pay them, but also be readable on Kindles, is to not use DRM.  Period.  There aren’t any options.

        (*) A disaster in a good way, perhaps.  Who _doesn’t_ want to see it all burn?  ;-)  Kind of makes you want to publish your own unlicensed CSS-protected DVDs containing your home movies, doesn’t it?

  5. Strange, I buy books from PM Press, Webscriptions, or other places and manage to put them on my Kindle or my Kobo Mini… If the sellers want to sell DRM-free books, they should and then I can buy them and put them on my device.

  6. question that may or may not be answerable here – doesn’t the existence of B&N [and the Nook] crew this up just as much as their misuse of tech terms?

    because most ebooks are in both amazon and B&N catalogs…

  7. I have worked professionally in publishing from around 1990 to 2011. Doing mainly I.T. work in support of publishers, but worked my way up. Done it all. Mailroom. Editorial. Layout. You name it.  Literally quit my publishing gig in 2011 because of the same kind of passionate & clueless idiocy this post outlines. Now I have a similar job in a new field, but publishing—unless you are an author & have some success—is a wretched mess of warped realities nowadays.

  8. I’m confused by this because I’ve bought books on Amazon that are marked “At the publisher’s request, this title is being sold without Digital Rights Management software (DRM) applied.”

    All of Scalzi’s work that I’ve bought, for example.  So it doesn’t seem like it’s Amazon’s issue so much as it is the publishers?

    1. It’s Amazon that doesn’t interoperate with Apple’s DRM or Adobe’s DRM, thus locking in customers to a particular platform.  Not that it’s really possible to interoperate in that manner — interoperable DRM is weak DRM as evidenced by Adobe’s DRM having been continuously broken for more than four years now.  

      1. Adobe is willing to play, for the right money; but nobody gets to interoperate with Apple’s DRM. Remember a few years back when Rhapsody tried to?

        Eventually team music got less stupid and realized that selling unprotected MP3s through Amazon and others would be safer than locking themselves into a DRM ecosystem controlled entirely by Apple.

  9. The part that confuses me is this:
    “We are seeking relief for independent brick-and-mortar bookstores so that they would be able to sell open-source and DRM-free books that could be used on the Kindle or other electronic ereaders”

    Given that brick-and-mortar stores sell paper books, it seems to be more than a little weird. Either they are very, very confused, or the plan is to have people go into physical bookstores to buy ebooks, which seems rather unlikely given that there’s little sane reason to require physical travel to purchase digital goods.

    1.  I actually think being able to buy ebooks at a physical bookstore is a good idea. A lot of people like bookstores because they’re a place of community and a place where people who like books can talk about them in person and swap recommendations. Being able to browse through a real life bookstore, pick up a book, flip through it and then buy the ebook version and leave with it on your ereader sounds pretty good to me.

      1. Plus there’s the possibility of customer service from a real person if you have a problem.

    1. Indies can’t sell onto the Kindle if DRM is required, because the only DRM that Kindle supports is Amazon’s own DRM which no one else can use.  Thus anyone selling the books that most people want to buy can’t let those same customers use them on Kindles.

  10. There is no reason there cannoot be an opensource DRM solution. PGP does something very similar to DRM and there are various open source implementations. OpenIPMP is an open source implementation of DRM for mpeg2/mpeg4 media. 

    1. PGP does nothing like DRM.

      PGP hides secrets from third parties who are not the intended recipients of the message.

      In the case of DRM, you have to hide secrets from the intended recipients of a message. That is, you have to give me the keys, and yet not let me see them.

      PGP does not do this. PGP cannot do this.

      That only works if you design hardware and software to hide its operations from its users. IOW: if you design things so that users can’t see or modify their operations.

    2. Encryption is sometimes included in DRM but the purpose of said encryption is never more than decorative.  This is the case because the encrypted content and the key to decrypt said content must both be delivered to the same person or device, thus rendering the encryption moot.

      The nonclementure with which we surround DRM is often misleading. A programmer who spends time reverse engineering a DRM’d file is referred to as a “hacker” who has “broken” some DRM.  But the task of decoding DRM content is really one of reverse engineering and documenting.  

      Imagine if a family member had written a book in an obscure word processing program and now could no longer open the files.  The task of reversing engineering the file format for these would be very similar in practice to the task of “breaking” DRM.

      With that in mind, the futility of Open Source DRM should be obvious, unless it was the intention that the DRM system would be strictly informative and without any attempt at enforcement.

  11. Retarded as their use of language may be, they do have a point tough.

    As far as I know you cannot get an ebook onto a kindle except if you go trough the amazon store. That’s what they mean by “freezing-out”. And the way that is implemented is indeed littered with DRM mechanisms from device lockdown to proprietary formats and signing of books that the kindle will otherwise refuse to display.

    If you read between the lines of their inane rambling, you will see the same effect that DRMs are always used, to exclude competition and control a platform.

    1. Stuff. Also, nonsense. My Kindle has dozens of books on it I didn’t buy from Amazon. Most etailers will sell you a .mobi you can directly drop onto your Kindle. The rest will sell you an .epub you can convert in thirty seconds and then drop onto your Kindle. It requires no jailbreaking, hacking, or anything else. Give a Kindle a file it can read and it will just work.

      1.  Yes, but the problem is that if you say “just convert it” to consumers, they’re going to give you a blank stare. Or “just drop a .mobi in there.” Or anything else that doesn’t involve “clicky magic button and book shows up.”

        1. “Yes, but the problem is that if you say “just convert it” to consumers, they’re going to give you a blank stare. ”

          So the publishers need to offer the eBook in more formats from the get-go.

    2. All the various ebook devices have one or more way to “sideload” content. Kindles can have content added either by email of physically connecting to a computer, for instance.  (Said content must be DRM free of course).

      But were this not the case, I still could not imagine a future for the indie sellers.  Disintermdiation is upon them.

    3.  To get ebook on kindle, buy mobi format book from third party, use usb cable to plug kindle into computer, copy mobi format book into documents directory on kindle. Voila!

  12. Wouldn’t put too much exegesis into words used in a telephone conversation.  Sounds like the legal demand letters have not been released yet.  If the argument is that indie shops can sell paper books from the same publishers but are shut out of ebooks by DRM, it’s very interesting.

    My guess is that like the AAPL case, it’s mainly the publishers’ conduct in question and AMZN would be sued to get disclosure.

    1.  No, the words I was quoting are in the complaint filed with the court. Who said anything about a telephone conversation?

      1. Um, you did. In the bit that you quoted:

        “We are seeking relief for independent brick-and-mortar bookstores so that they would be able to sell open-source and DRM-free books that could be used on the Kindle or other electronic ereaders,” Decker explained to The Huffington Post by telephone.

      2. Sorry, your boxed quote gave the impression that phone call was the source.  I see from para 18 of the complaint that it squarely identifies DRM with the *.azw file format for the Kindle which always “has” DRM.  Technically the file format shouldn’t be confused with the rights restriction technology built into it. 

        When I want to read a public domain book on Kindle I have to download in a different format *.mobi. Mobipocket is apparently owned by Amazon, currently has optional DRM.  The *.mobi format works on Kindle hardware and on its apps for other devices, excluding Android (Complaint para 19 seems wrong about that). 

        Unprotected *.PDF is also readable on Kindle.  (Ironically the Toronto Public Library rents out copyrighted and DRM protected PDF ebooks that will not run on Kindle, but only on a proprietary Adobe reader, which irks me no end.) And it appears Amazon is moving toward another improved file format altogether. So what you can and can’t do on Kindle is a bit of a dog’s breakfast under a moving goalpost.
        Obviously the indie sellers are concerned that there is no way they can obtain copyrighted ebooks from the Big 6 publishers to work on Kindle in any book format with or without any specific rights restrictions or DRM technology.  Whether the Complaint is mistaken or there was a calculated decision to “keep it simple” for the court by calling *.azw Amazon’s DRM, we’ll see. This “confusion” actually makes the case far more threatening to Amazon.

        The requested “relief” would be to prohibit use of *.azw as a “device specific DRM”. I looked in the complaint for anything about the best single aspect of Kindle, its “whispersync” technology that is part and parcel of that file format – those gutenberg *.mobi books or PDFs don’t sync or have online browser access as the official Kindle ebooks do. It makes possible a whole online community of readers leaving public comments, highlights, etc. in books as they read them. See if Amazon argues that this relief would either force it to abandon an advanced and exciting technology that its competitors don’t have or force it relinquish its lawful patent protection.

        More likely the best realistic outcome is to get Big 6 to offer DRM protected files in something like *.mobi to the Indie sellers. It’s a very interesting case.

  13. Not to mention, if you bought your e-books from Amazon (and possibly BN, although I’ve never done that), they have a Cloud Reader that doesn’t care (AFAIK) what platform/device you’re on.  I don’t even OWN a Kindle and I read books on my laptop all the time.

  14. I’ve been mulling these types of issues for a bit. Not sure if I have a solution, but…

    If publishers offered their books for sale directly, not Amazon or Apple, then I could, presumably, license several formats at the time of purchase. Bypass the players who will not play.

    Also, let’s say I want to benefit my local bookstore. If I buy through them > supplied from the publisher > same licensing offer, perhaps at a discount as an incentive. As an author, I’d like to know which bookstores are promoting my books and leading to sales. I’d go there for a visit, give them extra opportunities when the next book comes out, etc., because they have done the extra work to help me out.

    Once we have zero protections against piracy, people will get out of the habit of buying books, like music endured with Napster. It has never bounced back. Singles do not equal album sales. Then we might be in the unenviable position of buying directly from authors.

  15. I’m starting a tech company that is designed to let authors sell their own eBooks when their publishers require those same books to be sold with DRM so authors can particpate in the retailer revenue stream. 

    The requirment that books must be sold with DRM puts retailing books past the technical ability of almost all authors.  But once you pass the DRM bridge and actually talk with publishers you’ll find that they DON’T want new retailers. 
      For instancePenguin refuses to sign any new eBook retailers, you have to buy from the digital “wholesaler” Overdrive who eats half the revenue.  Overdrive refuses to do business with anyone who isnt’ a small bookstore.  

    The Kindle only uses Amazon’s DRM, thus if you want to sell books that must have DRM they are not usable on a Kindle which makes it hard to sell eBooks.  Amazon’s closed system isn’t likely an anti-trust issue, however publishers refusual to allow new retail partners and trying to control what those partners do may be an anti-trust issue.
      Since the Big 5 are all under conscent decrees with the DOJ the DOJ could step in and push for an admin remedy, it’s POSSIBLE this lawsuit is a tactical one designed to highlight issues with the DOJ and have them push to make changes.  While the suit would fail the issue would get resolved.  I am however doubtful that the bookstores/lawyers are that crafty in this case. 

  16. DRM is a non-issue.  Isn’t there a law about filing frivolous lawsuits?  I have a book on Kindle with DRM cuz I guess I pushed the wrong button and they won’t allow you to undo it.  But it is on Smashwords without DRM and Smashwords does download to Kindle.  Also reputable sites have given links that tell you how to by pass DRM.  And you can find all 3 Shades of Gray on bit torrent sites for free  (last I checked).  That link was also on a reputable site.  WTF are these people talking about?   I blogged about this days ago.  In response to some other Indie Author that wrote about it.  Seriously?  Go walk the dog.

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