Is Hachette Being Hoisted by Its Own DRM Petard?

booksRebecca Tushnet points to this column by Cory Doctorow arguing that Hachette is being held hostage in its fight with Amazon over e-book versions of its books because of its “single-minded insistence on DRM”: “It’s likely that every Hachette ebook ever sold has been locked with some company’s proprietary DRM, and therein lies the rub.” Doctorow argues that because of the DMCA Hachette can no longer get access, or authorize others to get access to, its own books:

Under US law (the 1998 Digital Millennium Copyright Act) and its global counterparts (such as the EUCD), only the company that put the DRM on a copyrighted work can remove it. Although you can learn how to remove Amazon’s DRM with literally a single, three-word search, it is nevertheless illegal to do so, unless you’re Amazon. So while it’s technical child’s play to release a Hachette app that converts your Kindle library to work with Apple’s Ibooks or Google’s Play Store, such a move is illegal.

It is an own-goal masterstroke.

Everyone loves irony, but I can’t figure out how to make Doctorow’s argument work. First, I can’t figure out what the anticircumvention problem would be. Second, I can’t figure out why Hachette wouldn’t be able to provide other distributors with e-book versions of its books.

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Why Isn’t Aereo a Cable System?

Aereo tiny antennaThe Aereo case was argued this morning, and before Paul Clement could even get rolling on his introduction on behalf of the broadcaster plaintiffs, Justice Sotomayor hit him with this:

JUSTICE SOTOMAYOR: Why aren’t [companies like Aereo] cable companies?

MR. CLEMENT: They’re not ­­–

JUSTICE SOTOMAYOR: I’m looking at the — everybody’s been arguing this case as if for sure they’re not. But I look at the definition of a cable company, and it seems to fit.

I’ve been wondering this too. The question presented in Aereo is whether Aereo is engaged in a “public performance” when its servers automatically save and transmit recorded broadcast television programs to subscribers at their request, or whether that activity is properly understood as only the users’ activity. (Scotusblog has a good backgrounder on the case.)

In debating that issue, both the broadcasters and Aereo have at separate points analogized Aereo to a cable system — the broadcasters in the course of claiming that Congress intended to define what Aereo is doing as a “public performance,” just as it did with cable retransmission; Aereo in claiming that it is engaged in disruptive innovation, just as the early cable operators did. But that raises a somewhat different question: why isn’t Aereo subject to Section 111 of the Copyright Act? If it is, then the Court could avoid the entire debate over public performances; the text of Section 111 provides a direct route to liability for certain retransmissions without even mentioning the words “public performance.” And yet, as far as I can tell, it has not been raised by the broadcaster plaintiffs as a basis for a preliminary injunction.

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