Anticircumvention

The copyright page in Unraveled contains this statement:

Where such permission is sufficient, the author grants the end user the right to strip any DRM which may be applied to this work.

I added this because some of the places where the ebook is available for download automatically apply DRM. I am not left with a choice in the matter.

I don’t like DRM. If I had a choice, I would kick DRM to the curb, effective immediately, and I would never, ever see it again. It doesn’t work–a well-trained two-year-old child could strip DRM in about 12 seconds–and once stripped, it doesn’t ever need to be put back. All DRM has ever done for me is prevent me from enjoying the books that I have purchased legitimately.

But it is illegal to strip DRM. In particular, it is illegal under 17 U.S.C. s 1201(1)(A), which says: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”

But Subsection (3) explains that “to ‘circumvent a technological measure’ means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” (emphasis mine).

I’m fairly certain I am the owner of the copyright. But the statute doesn’t say, “without the permission of the copyright owner”–it says, “without the authority of the copyright owner.” I don’t pretend to know how this will be interpreted, and I can’t actually encourage anyone to do something that would be illegal in reliance on my say-so. So you should consult a lawyer before you do something illegal. (Or, you should do it in private, and not, like, tell people about it. But don’t tell anyone I said that.)

I suspect–and this is rumination, and not legal advice–that my permission is effective authorization to allow DRM stripping for my self-published works, and so to the extent that this may be necessary, if you’ve bought a DRM-crippled version of my self-published works, I extend to you whatever additional license might be necessary to uncripple it. (And I can do that, so there we are.)

I also suspect that I may not be able to authorize anyone to strip DRM from my works that are traditionally published. That’s because I’ve given Harlequin the exclusive right to distribute my works, and I suspect that I lack the authority to tell people what they can and can’t do.

I don’t know this for a fact, though. The case law on DRM-stripping says that the anticircumvention provisions of the DMCA are independent of copyright. Having carefully checked my contract with Harlequin, nowhere in it do I grant them exclusive rights–or any rights at all–with respect to authorization of anticircumvention. My contract only refers to “copyright rights.” So I may still have the authority to allow you to strip DRM.

There are other things to think about, that I won’t go into here. This is certainly a tangled legal issue. If you really want to be safe…typically, I’d say, “talk to a lawyer,” but I doubt any lawyer today knows the answer. It’s an open legal question.

I haven’t seen any case law centering on this point, as very few copyright owners have granted DRM-stripping permission–and so to the extent that it is within my power to grant, which it probably isn’t at all, I’m okay with anyone who wants to strip DRM from my traditionally published works as well in order to enjoy any of their fair use rights.

If anyone is aware of any case law that decides the meaning of “the authority of the copyright owner” in this subsection, I’d love to see it–but a brief skim suggests that this is an open issue.