Putting a spell on your readers

Access restrictions on electronic publications attempt to oblige users (including lawful ones) to use reader software provided by the publisher - and no other. That reader software provides the publisher with the ability to annul traditional rights of the reader.

One cannot bind lawful purchasers of a book by a notice in the book (i.e. if a book's title page says stuff about `by reading any more of this book you implicitly agree to terms and conditions we chose to make up' the reader can safely ignore it - except, possibly, if advised of such restrictions at the time of purchase), nor does orthodox copyright provide for any similar restraint in conjunction with listening to music or watching films (though reminding you of how the law does restrain you is fair enough - and common practice). Examples:

• You buy a book. It's illegible but comes with a fancy box, labelled `copy protection device', and (legible) instructions on the back cover telling you how to use the fancy box to read the book, telling you not to read the book any other way and telling you not to tamper with the box. Dmitry Sklyarov takes a look at the book, laughs and promptly shows you how to use a mirror and a magnifying glass to read it. The publisher might not like that, but the law's on your side (even if they've patented the box, a court will probably agree with Dmitry that his solution was so obvious it shouldn't be covered by the patent). Notice that Dmitry's device doesn't make it any easier to copy the book; photocopying the book (though illegal) works fine, albeit you need a device to read the copy; so the fancy box's label is a lie.
• You buy a book. Inside the front cover it says: `by reading this book you consent to abstain from publishing any review of or commentary on this work, save with the express permission of the publisher' (or similar: chose any and all of the clauses you least like in an `end-user license agreement' from a software house near you). You can safely ignore this: no court will honour it. (Were matters otherwise, the scientologists would be much happier.)
• You buy a book. Its cover is locked shut and there's a phone number on the back for you to ring to obtain your `free' key. They won't send you the key unless you first sign a legal document of their chosing. You rip the book's cover off and read it anyway. The law stands up for your right to do that (though your right to sell, lend, etc., the book may depend on it being in its original binding) and my right to make, and sell you, a tool that helps you do a tidy job of that (and, e.g., re-cover the book afterwards).

However, software publishers have managed to establish a de facto exception to this: one can bind users of software by the terms and conditions of a document presented to them when they install or run the software (though it's not at all clear that the restraint is in any way binding on, say, the heirs of someone who installed the software and died without telling their heirs about the license which is nowhere visible except during installation). It's possible, in most of the world, that courts wouldn't uphold such `agreements'; but bits of the U.S.A. in which UCITA (pronounced `you cheater') is law will uphold them.

By constraining you to access a publication via software they control, publishers acquire the ability to impose similar restrictions on their customers that were (deliberately) never feasible with books. Examples:

• You buy an e-book. The accompanying software, when you first access the e-book, puts up a screenful of legalese, with an `Accept' button at the bottom; until you click on this, the software refuses to show you the book. Maybe the publisher is bound to refund your money if you return the book having chosen not to accept: but if you click on the button, you are bound by that restraint, at least if in the U.S.A. (c/o UCITA and DMCA). Notice that you can't read the book without consenting to surrender all your `fair use' rights, if that's what the legalese demands.
• I publish a piece of software with which you can read that book; I don't oblige you to go via the coercive document to get at the rest of the book (I don't bother to show you it, or I provide you with an `ignore this cr*p' button alongside `Accept'). The original publisher doesn't like that, so they try to prosecute me for thwarting their access restrictions. I can't see how this differs, in terms of its effects on intellectual property, from the locked book and mirror-`encoding' stories, above: but the courts side with the publisher this time, at least in UCITA jurisdictions.

And while we're at it, let's not forget:

• You get fed up with the lousy user-interface provided by an e-book; you suggest improvements to the publisher but get the distinct impression they're in no hurry to implement them, and you'll probably have to pay for the new version too; or
• You want the newly published e-book, but it comes with no software for Linux and guess which O/S you're using ? Or it only supports the latest version of M$'s farcical pretence at an O/S and you're using an older one; or
• You don't want to see the advertisements included in the DVD, but the publisher's player insists on showing you them anyway (and won't let you fast-forward over them); or ... etc.

so you hire a programmer to write you a viewer which serves your needs; or you are a programmer and do the job yourself. You've lawfully purchased a bona fide copy of the publication, you don't make illicit copies, you may even have made the program restrain users from copying the publication, but you and/or the programmer publish your program (whose copyright, after all, you and/or the programmer own). You and the programmer get sued under the DMCA (next time either of you sets foot in a jurisdiction which believes in it). Apparently, like Dmitry Sklyarov, you're `pirates' and the publishers aren't greedy paranoid extortionists.

Corporate publishers are pushing legislators to grant (via laws such as the U.S.A.'s DMCA and the E.U.'s copyright directive) secrecy-protection to the data formats they use to store publications on their distribution media:

• they deny, falsely, that competing software which can read their data formats has legitimate uses and is needed to protect the public's fair use rights - which depend on modes of access the publishers' software doesn't support;
• they claim, falsely, that data held in these formats is harder to copy - though copying data byte-for-byte does not depend on format - when, in truth, the only effect is that direct copies (like the original) can only be read with the publisher's software;
• they point, irrelevantly (because the criminals involved don't need to decypher the data), to a huge black market in illegal copies of their works, which `costs' them teradollars per second in `lost revenue' (or so their creative accountancy tries to make it seem; yet the publishers remain highly profitable);
• something must be done (about `pirates' who aren't affected by secrecy of the data formats) and there's something they want that they can make sound vaguely like it's relevant. They don't want their lawful customers to be offered a free market in viewer software; and (by telling the lies above) they've found a guise under which to ask for it to be outlawed.

Legislators would appear to be suckers for this kind of bogus justification for the erosion of our rights. (Remember RIP ?) Something must be done ... about this situation - I know, why don't we pillory the legislators and publishing executives (there's more logical link between this problem and proposed solution than between the pair the publishers trumpet).

The data formats the publishers are describing as `copy-protection measures' are really just access restrictions - designed to restrict lawful purchasers' access to the publications by requiring them to access the data only via the publishers' software, thus preventing the emergence of a free market in access software.