Telling users how to strip the DRM from their legally purchased ebooks is not contributory copyright infringement, according to a ruling last month by a federal judge in New York. Judge Denise Cote dismissed two publishers' claims of contributory infringement and inducement in Abbey House Media v. Apple Inc., one of the many cases to come out of the antitrust litigation against Apple and a handful of major publishers.
Abbey House Media operated an ebook store for the publishers Penguin and Simon & Schuster from 2010, and was contractually obligated to wrap the ebooks sold in that store with DRM. When Abbey House shut down the ebook store in 2013, it gave its customers a month's notice that they would no longer be able to add new devices to read their purchased books on—and also explained that some customers were using the free software package Calibre to remove the DRM so they would be able to move their library to new hardware. Specifically, Abbey House said:
Getting access to your downloaded books if you change reading devices: for those of you who downloaded your books to your PCs or Macs, you can strip DRM from your books after which you will be able to readily port them from device to device through drag and drop or other means, without the need for further downloads. There is a great deal of information online about stripping DRM. (Please be sure to make backup copies of your eBook files in a separate directory before stripping in the event anything goes wrong in your first attempts.) Many of our customers are using Calibre or other tools to strip DRM from their downloaded eBooks in order to have them available indefinitely should they change reading devices. Many argue that this is a legitimate use as long as this is being done for personal use of eBooks purchased, not for piracy. We are told this is in the spirit of the eBook license and that it is common practice.
Penguin and Simon & Schuster argued that, by making that announcement and pointing to a specific piece of software, Abbey House was engaging in contributory infringement and inducing people to infringe. Fortunately, Judge Cote recognized the problems with those claims and dismissed them both.
Judge Cote dismissed the inducement claim by noting that the uses Abbey House was enabling—personal backup and device transfers—were non-infringing. As Judge Cote puts it:
[Simon & Schuster] and Penguin's arguments to the contrary conflate the removal of DRM protection with the infringement alleged in the counterclaims. There is no question that Abbey House encouraged the removal of DRM protection. The act of infringement underlying the inducement claim, however, is not the removal of DRM protection. Rather, it is the copying and distribution of ebooks to others after such protection has been removed. The counterclaims do not allege that Abbey House encouraged such infringing acts.
That's exactly right. And it's an especially significant point as we continue with the triennial rulemaking process seeking exemptions to the anti-circumvention provisions of the Digital Millennium Copyright Act. There, we are pointing to non-infringing uses that are nevertheless hampered by the presence of DRM software and the legal backing that supports it.
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.