Lawquake! Judge rules that explaining jailbreaking isn't illegal

A federal judge in New York has ruled that telling people where to get DRM-removal software isn't against the law — it's a huge shift in the case-law around DRM, and it's an important step in the right direction.

Judge Denise Cote dismissed claims of contributory infringement and inducement brought against Abbey House Media by Simon and Shuster and Penguin. Abbey House had operated a DRM-based ebook store that sold the publishers' books and when it shut the store down, it advised its users that they could use Calibre to remove the DRM from their ebooks and read them on other platforms.

The publishers sued, arguing that telling people how to remove DRM induced them to infringe copyright. The judge, noting that the publishers could not cite an example of actual infringement resulting from Abbey House's actions, said that they had no claim.

However, this ruling alone doesn't fix the legal problems with DRM and its status under the Digital Millennium Copyright Act. For starters, if the judge had found the someone had infringed copyright as a result of Abbey House telling its customers to use Calibre, the ruling might have gone differently — but that means that all of Abbey House's customers' ongoing access to their purchased books is dependent on no one misusing Calibre, ever.

Furthermore, the judge didn't rule that Calibre's DRM-removing facility was legal — under the DMCA, it arguably is. Meaning that even it's legal to tell you about Calibre, it may still be illegal to make Calibre, host Calibre, etc.

With regard to contributory infringement, Judge Cote noted that neither publisher alleged that Abbey House actually knew of any infringement that followed the stripping of DRM from ebooks (indeed, the publishers failed to identify any specific instance of direct infringement at all). Since contributory infringement requires both knowledge of direct infringement and material assistance to the direct infringer, she dismissed this claim.

Judge Cote's ruling is a refreshing response to a disappointingly common conflation: if the publishers got their way, readers' technical ability to infringe because they're not restricted by DRM would effectively count as infringement. That's the same faulty logic that the copyright lobby uses to argue for increasing control over secondary uses of purchased works, whether that's importing or re-selling media, or even repairing or modifying devices. It's a cynical view that treats a user's ownership as assumed wrongdoing—so it's nice to see Judge Cote reject it.

DRM, and the laws behind it, have contributed to a sense among rightsholders that they can and should control media and devices even after users have purchased them. Judge Cote's ruling is an important reminder that that's not the case.

Pointing Users to DRM-Stripping Software Isn't Copyright Infringement, Judge Rules
[Parker Higgins/EFF]

(Thanks, Nate!)

(Image: DRM PNG 900 2, listentomyvoice, CC-BY-SA)