[LINK] Doctorow's First Law

Kim Holburn kim at holburn.net
Fri Aug 6 10:32:33 AEST 2010

> "Any time someone puts a lock on something that belongs to you, and  
> won't give you a key, they're not doing it for your benefit."


> Doctorow's First Law


> In the meantime, I've been filling the time productively by  
> attempting to discover which online booksellers exist to serve the  
> interests of copyright owners, like me, and which ones are seeking  
> to unfairly bind copyright holders (and consumers) to their  
> platforms and, as a result, diminish our negotiating power. I'm  
> happy to say that after much work, I have persuaded three major  
> retailers to offer my e-books without any technology or license  
> conditions that would prohibit my customers from moving the e-books  
> they've purchased to a competitor's device: Amazon, Barnes & Noble,  
> and Kobo.


> Strange as it may sound, this is a major victory. I first discovered  
> just how little bargaining power creators have in the digital  
> marketplace back in 2008, when Random House Audio and I approached  
> Audible, the Amazon division that controls most of the audiobook  
> market and the sole audiobook supplier to iTunes, and asked them to  
> carry the audio edition of my New York Times bestseller Little  
> Brother without DRM. We were turned down.
> To Audible's credit, they relented when my next book, Makers, came  
> out. However, they informed me that Apple, their largest retail  
> partner, would not carry the title in the iTunes store without DRM.  
> And despite agreeing to forgo the DRM, Audible's license agreement  
> still contained contract prohibitions on customers' moving their  
> property to competing platforms, along with plenty of other terms  
> that either were no good for my business interests and/or were terms  
> that I personally would not agree to in order to buy an audiobook.
> I tried to remedy this creatively by asking Audible to allow me to  
> add some preliminary language to the audio edition, something that  
> said, "notwithstanding any agreement you clicked on to buy this  
> book, Cory Doctorow and Random House Audio, as the copyright  
> holders, hereby give you their blessing to do anything that is  
> permitted by your local copyright law." In other words: don't break  
> the law, but feel free to do anything else—the same terms under  
> which your car, dishwasher, and every traditional book on your  
> bookshelf was sold to you. Again, Audible declined.
> This led me to formulate something I grandiosely call Doctorow's  
> First Law: "Any time someone puts a lock on something that belongs  
> to you, and won't give you a key, they're not doing it for your  
> benefit."
> This year, I set out to test this law. In May, I cornered Macmillan  
> CEO John Sargent and CTO Fritz Foy at the Macmillan BEA party. As  
> the publishers of my books with Tor, I asked them if they'd be  
> willing to try offering my e-books to all the major online  
> booksellers—Amazon's Kindle store, Apple's iPad store, Barnes &  
> Noble's Nook store, Sony's e-book store, and Kobo—as DRM-free  
> products with the following text inserted at the beginning of the  
> file:
> "If the seller of this electronic version has imposed contractual or  
> technical restrictions on it such that you have difficulty  
> reformatting or converting this book for use on another device or in  
> another program, please visit http://craphound.com for alternate,  
> open format versions, authorized by the copyright holder for this  
> work, Cory Doctorow. While Cory Doctorow cannot release you from any  
> contractual or other legal obligations to anyone else that you may  
> have agreed to when purchasing this version, you have his blessing  
> to do anything that is consistent with applicable copyright laws in  
> your jurisdiction."
> As I explained to John and Fritz, although all my books are  
> available as downloads for free, I often hear from readers who want  
> to buy them, either because it is a simple way to compensate me (I  
> also maintain a public list of schools and libraries who've  
> solicited copies of my books so that grateful e-book readers can  
> purchase and send a print copy to one of them, thus repaying my  
> favor and doing a good deed at the same time) or because they like  
> the no-hassle option of tapping on their device to buy a book. I am  
> more than happy to offer my otherwise free books for sale in any  
> vendor's store, of course, but only if the vendors agree to carry  
> them on terms I feel I can stand behind as an entrepreneur, as an  
> artist, and as a moral actor.
> John and Fritz strongly supported the idea. Macmillan, after all,  
> had just gone to the mat with Amazon for control of e-book terms of  
> sale, making control a priority in its future dealings with  
> electronic retail and wholesale channels. Now, there are some  
> writers, agents, or publishers that want DRM and restrictive EULAs.  
> And though I can't understand why, we are at least in agreement on  
> this point: it should be the copyright holder's choice. When it  
> comes to which restrictions copyright law should place on e-book  
> readers, the copyright proprietor—whether the author or the publisher 
> —should call the shots, not the retailers.
> I'm happy to report that Amazon, to its eternal credit, was  
> delighted to offer my e-books without DRM and with the anti-EULA  
> license language, as was Barnes & Noble and Kobo. Why Amazon's  
> Kindle division was happy to do what its Audible division had  
> categorically rejected is still beyond me, but I'll take any sign of  
> fairness I can get. I can only hope that Amazon's other digital  
> divisions catch up with Kindle, and if they do, I'll be eager to  
> have my audiobooks for sale in the Audible store. Amazon is a  
> retailer that has literally revolutionized my life, my go-to  
> supplier for everything from toilet brushes to used DVDs for my  
> toddler. And in addition to selling my own works, I also sell  
> upwards of 25,000 books a year through Amazon affiliate links in my   
> online book reviews. This makes me a one-man, good-sized independent  
> bookstore, with Amazon doing my fulfillment, payment processing,  
> stocking, etc.
> Unfortunately, I had no such luck with Apple or Sony. True to my  
> earlier experience with Apple's iTunes store, Apple has a mandatory  
> DRM requirement for books offered for sale for the iPad. I know many  
> Apple fans believe that because Steve Jobs penned an open letter  
> decrying DRM that the company must use DRM because they have no  
> choice. But this simply isn't true. Sony has the same deal.


> Cracked Thinking
> Dirty fighting instructors say: "any weapon you don't know how to  
> use belongs to your enemy." One illustrative example of this  
> principle is to be found in DRM. Until last week, U.S. law protected  
> DRM, making it illegal to break encryption or other technological  
> protections under nearly any circumstance. In other words, if Apple  
> offers a DRM-locked edition of one of my books, even I am not  
> legally allowed to remove the DRM without Apple's permission, even  
> if I'm making a perfectly legal use under copyright law. And I  
> certainly can't authorize my readers to do so.


> If you think about it, this is a rather curious circumstance,  
> because it means that once a technology company puts a lock on a  
> copyrighted work, the proprietor of that copyright loses the right  
> to authorize his audience to use it in new ways, including the right  
> to authorize a reader to move a book from one platform to another.  
> At that point, DRM and the laws that protect it stop protecting the  
> wishes of creators and copyright owners, and instead protect the  
> business interests of companies whose sole creative input may be  
> limited to assembling a skinny piece of electronics in a Chinese  
> sweatshop.
> What's more, many of these distribution channels won't even allow  
> copyright holders the option of presenting their works without DRM.  
> So if you sell $1 million worth of DRM-locked Kindle books, you are  
> essentially a million bucks in hock to Amazon—that being the cost of  
> the investment you'd have to ask your audience to abandon in order  
> to switch to a competing platform. How does giving your retail  
> partners that kind of market control benefit you, the copyright  
> holder?

Kim Holburn
IT Network & Security Consultant
T: +61 2 61402408  M: +61 404072753
mailto:kim at holburn.net  aim://kimholburn
skype://kholburn - PGP Public Key on request

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