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Adobe Resurrects E-Book DRM… Again February 10, 2014

Posted by Bill Rosenblatt in DRM, Publishing.
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Over the past couple of weeks, Adobe has made a series of low-key announcements regarding new versions of its DRM for e-books, Adobe Content Server and Rights Management SDK.  The new versions are ACS5 and RMSDK10 respectively, and they are released on major platforms now (iOS, Android, etc.) with more to come next month.

The new releases, though rumored for a while, came as something of a surprise to those of us who understood Adobe to have lost interest in the e-book market… again.  They did so for the first time back in 2006, before the launch of the Kindle kicked the market into high gear.  At that time, Adobe announced that version 3 of ACS would be discontinued.  Then the following year, Adobe reversed course and introduced ACS4.  ACS4 supports the International Digital Publishing Forum (IDPF)’s EPUB standard as well as Adobe’s PDF.

This saga repeated itself, roughly speaking, over the past year.  As the IDPF worked on version 3 of EPUB, Adobe indicated that it would not upgrade its e-reader software to work with it, nor would it guarantee that ACS4 would support it.  The DRM products were transferred to an offshore maintenance group within Adobe, and all indications were that Adobe was not going to develop it any further.  Now that’s all changed.

Adobe had originally positioned ACS in the e-book market as a de facto standard DRM.  It licensed the technology to a large number of makers of e-reader devices and applications, and e-book distributors around the world.  At first this strategy seemed to work: ACS looked like an “everyone but Amazon” de facto standard, and some e-reader vendors (such as Sony) even migrated from proprietary DRMs to the Adobe technology.

But then cracks began to appear: Barnes & Noble “forked” ACS with its own extensions to support features such as user-to-user lending in the Nook system; Apple launched iBooks with a variant of its FairPlay DRM for iTunes content; and independent bookstores’ IndieBound system adopted Kobo, which has its own DRM.  Furthermore, interoperability of e-book files among different RMSDK-based e-readers was not exactly seamless.  As of today, “pure” ACS represents only a minor part of the e-book retail market, at least in the US, including Google Play, SmashWords, and retailers served by OverDrive and other wholesalers.

It’s unclear why Adobe chose to go back into the e-book DRM game, though pressure from publishers must have been a factor.  Adobe can’t do much about interoperability glitches among retailers and readers, but publishers and distributors alike have asked for various features to be added to ACS over the years.  Publishers have mainly been concerned with the relatively easy availability of hacks, while distributors have also expressed the desire for a DRM that facilitates certain content access models that ACS4 does not currently support.

The new ACS5/RMSDK10 platform promises to give both publishers and distributors just about everything they have asked for.  First, Adobe has beefed up the client-side security using (what appear to be) software hardening, key management, and crypto renewability techniques that are commonly used for video and games nowadays.

Adobe has also added support for several interesting content access models. At the top of the list of most requested models is subscriptions.  ACS5 will not only support periodical-style subscriptions but also periodic updates to existing files; the latter is useful in STM (scientific, technical, medical) and various professional publishing markets.

ACS5 also contains two enhancements that are of interest to the educational market.  One is support for collections of content shared among multiple devices, which is useful for institutional libraries.  Another is support for “bulk fulfillment,” such as pre-loading e-reader devices with encrypted books (such as textbooks).  Bulk fulfillment requires a feature called separate license delivery, which is supported in many DRMs but hasn’t been in ACS thus far.  With separate license delivery, DRM-packaged files can be delivered in any way (download, optical disk, device pre-load, etc.), and then the user’s device or app can obtain licenses for them as needed.

Finally, ACS5 will support the Readium Foundation’s open-source EPUB3 e-reader software.  Adobe is “evaluating the feasibility” of supporting the Readium EPUB 3 SDK in its Adobe Reader Mobile SDK; but this means that distributors will now definitely be able to accommodate EPUB3 in their apps.

In all, ACS5 fulfills many of the wish list items that I have heard from publishers over the past couple of years, leaving one with the impression that it could expand its market share again and move towards Adobe’s original goal of de facto standard-hood (except for Amazon and possibly Apple).  ACS5 is backward compatible with older versions of ACS and does not require that e-books be re-packaged; in other words, users can read their older files in RMSDK10-enabled e-readers.

Yet Adobe made a gaffe in its announcements that immediately jeopardized all this potential: it initially gave the impression that it would force upgrades to ACS5/RMSDK10 this July.  (Watch this webinar video from Adobe’s partner Datalogics, starting around the 21-minute mark.)  Distributors would have to upgrade their apps to the latest versions, with the hardened security; and users would have to install the upgrades before being able to read e-books packaged with the new DRM.  Furthermore, if users obtain e-books packaged with the new DRM, they would not be able to read them on e-readers based on the older RMSDK. (Yet another sign that Adobe has acted on pressure from publishers rather than distributors.)  In other words, Adobe wanted to force the entire ACS ecosystem to move to a more secure DRM client in lock-step.

This forced-upgrade routine is similar to what DRM-enabled download services like iTunes (video) do with their client software.  But then Apple doesn’t rely on a network of distributors, almost all of which maintain their own e-reading devices and apps.

In any case, the backlash from distributors and the e-publishing blogosphere was swift and harsh; and Adobe quickly relented.  Now the story is that distributors can decide on their own upgrade timelines.  In other words, publishers will themselves have to put pressure on distributors to upgrade the DRM, at least for the traditional retail and library-lending models; and some less-secure implementations will likely remain out there for some time to come.

Adobe’s new release balances between divergent effects of DRM.  On the one hand, DRM interoperability is more important than ever for publishers and distributors alike, to counteract the dominance of Amazon in the e-book retail market; and the surest way to achieve DRM interoperability is to do away with DRM altogether.  (There are other ways to inhibit interoperability that have nothing to do with DRM.)  But on the other hand, integrating interoperability with support for content access models that are unsupportable without some form of content access control — such as subscriptions and institutional library access — seems like an attractive idea.  Adobe has survived tugs-of-war with publishers and distributors over DRM restrictions before, so this one probably won’t be fatal.

Judge Dismisses E-Book DRM Antitrust Case December 12, 2013

Posted by Bill Rosenblatt in DRM, Law, Publishing.
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Last week a federal judge in New York dismissed a lawsuit that a group of independent booksellers brought earlier this year against Amazon.com and the (then) Big Six trade publishers.  The suit alleged that the publishers were conspiring with Amazon to use Amazon’s DRM to shut the indie booksellers out of the majority of the e-book market.  The three bookstores sought class action status on behalf of all indie booksellers.

In most cases, independent booksellers can’t sell e-books that can be read on Amazon’s Kindle e-readers; instead they have a program through the Independent Booksellers Association that enables consumers to buy e-books from the stores’ websites via the Kobo e-book platform, which has apps for all major devices (PCs, iOS, Android, etc.) as well as Kobo eReaders.

Let’s get the full disclosure out of the way: I worked with the plaintiffs in this case as an expert witness.  (Which is why I didn’t write about this case when it was brought several months ago.)  I did so because, like others, I read the complaint and found that it reflected various misconceptions about DRM and its place in the e-book market; I thought that perhaps I could help educate the booksellers.

The booksellers asked the court to enjoin (force) Amazon to drop its proprietary DRM, and to enjoin the Big Six to allow independent bookstores to sell their e-books using an interoperable DRM that would presumably work with Kindles as well as iOS and Android devices, PCs, Macs, BlackBerrys, etc.  (The term that the complaint used for the opposite of “interoperable DRM” was “inoperable DRM,” much to the amusement of some anti-DRM folks.)

There were two fundamental problems with the complaint.  One was that it presupposed the existence of an idealized interoperable DRM that would work with any “interoperable or open architecture device,” and that “Amazon could easily, and without significant cost or disruption, eliminate its device specific restrictive [] DRM and instead utilize an available interoperable system.”

There is no such thing, nor is one likely to come into being.  I worked with the International Digital Publishing Form (IDPF), the trade association for e-books, to design a “lightweight” content protection scheme that would be attractive to a large number of retailers through low cost of adoption, but that project is far from fruition, and in any case, no one associated with it is under any illusion that all retailers will adopt the scheme.  The only DRM that is guaranteed to work with all devices and all retailers forever is no DRM at all.

The closest thing there is to an “interoperable” DRM nowadays is Adobe Content Server (ACS) — which isn’t all that close.  Adobe had intended ACS to become an interoperable standard, much like PDF is.  Unlike Amazon’s Mobipocket DRM and Apple’s FairPlay DRM for iBooks, ACS can be licensed and used by makers of e-reader devices and apps.  Several e-book platforms do use it.  But the only retailer with significant market share in the United States that does so is Barnes & Noble, which has modified it and combined it with another DRM that it had acquired years ago.  Kobo has its own DRM and uses ACS only for interoperability with other environments.

More relevantly, I have heard it said that Amazon experimented with ACS before launching the Kindle with the Mobipocket DRM that it acquired back in 2005.  But in any case, ACS’s presence in the US e-book market is on the wane, and Adobe has stopped actively working on the product.

The second misconception in the booksellers’ complaint was the implication that the major publishers had an interest in limiting their opportunities to sell e-books through indie bookstores.  The reality is just the opposite: publishers, from the (now) Big Five on down, would like nothing more than to be able to sell e-books through every possible retailer onto every possible device.  The complaint alleges that publishers “confirmed, affirmed, and/or condoned AMAZON’s use of restrictive DRMs” and thereby conspired to restrain trade in the e-book market.

Publishers have been wary of Amazon’s dominant market position for years, but they have tolerated its proprietary technology ecosystem — at least in part because many of them understand that technology-based media markets always settle down to steady states involving two or three different platforms, protocols, formats, etc.  DRM helps vendors create walls around their ecosystems, but it is far from the only technology that does so.

As I’ve said before, the ideal of an “MP3 for e-books” is highly unlikely and is largely a mirage in any case.  Copyright owners have a constant struggle to create and preserve level playing fields for retailers in the digital age, one that the more savvy among them recognize that they can’t win as much as they would like.

Judge Jed Rakoff picked up on this second point in his opinion dismissing the case. He said, “… nothing about [the] fact [that publishers made agreements with Amazon requiring DRM] suggests that the Publishers also required Amazon to use device-restrictive DRM limiting the devices on which the Publishers’ e-books can be display, or to place restrictions on Kindle devices and apps such that they could only display e-books enabled with Amazon’s proprietary DRM. Indeed, unlike DRM requirements, which clearly serve the Publishers’ economic interests by preventing copyright violations, these latter types of restrictions run counter to the Publishers’ interests …” (emphasis in original).

Indie bookstores are great things; it’s a shame that Amazon’s Kindle ecosystem doesn’t play nicely with them. But at the end of the day — as Judge Rakoff also pointed out — Amazon competes with independent booksellers, and “no business has a duty to aid competitors,” even under antitrust law.

In fact, Amazon has repeatedly shown that it will “cooperate” with competitors only as a means of cutting into their markets. Its extension of the Kindle platform to public library e-lending last year is best seen as part of its attempt to invade libraries’ territory. More recently, Amazon has attempted to get indie booksellers interested in selling Kindle devices in their stores, a move that has elicited frosty reactions from the bookstores.

The rest of Judge Rakoff’s opinion dealt with the booksellers’ failure to meet legal criteria under antitrust law.  Independent booksellers might possibly have a case to bring against Amazon for boxing them out of the market as reading goes digital, but Book House of Stuyvesant Plaza et al v. Amazon.com et al wasn’t it.

“Netflix for E-Books” Approaches Reality October 7, 2013

Posted by Bill Rosenblatt in Publishing, Services.
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Back in 2002, a startup company called listen.com had just concluded licensing deals with all of the (then five) major labels.  The result was Rhapsody: the “celestial jukebox” finally brought to life, the first successful subscription on-demand music service.  Rhapsody — whose original focus on classical music must have made it seem like a low-impact experiment to the majors — didn’t get on the map until they closed those deals.*

Eleven years later, something analogous is happening in the world of book publishing.  Last week, the popular document sharing site Scribd obtained licenses to all backlist titles from HarperCollins, one of the Big Five trade book publishers (along with Penguin Random House, Simon & Schuster, Macmillan, and Hachette), for an $8.99/month all-you-can-read subscription service.  It should only be a matter of time before the other four trickle in.  The service had been in “soft launch” mode since January with catalogs from smaller publishers such as RosettaBooks and SourceBooks.

Why Scribd and not Oyster or any of the others?  Because Scribd already has a huge user base — 80 million monthly visitors — making it an attractive existing audience instead of a speculative one.

Scribd started in 2006 as sort of a “YouTube for documents.”  The vast majority of the documents on the site were free; many were individual authors’ writings, corporate whitepapers, court filings, and so on.  Scribd also enabled authors to sell their documents as paid downloads (DRM optional).  Eventually some publishers put e-books up for individual sale on the site, including major publishers in the higher ed and scholarly segments.

The publishing industry has been buzzing about the possibility of a “Netflix for books” for a couple of years now.  A few startups, such as Oyster, have built out the infrastructure but have only gotten licenses from smaller publishers and independent authors.  At least for now, only Scribd has a major publisher deal; that will make all the difference in taking the subscription model for e-books to the mainstream.  Like it or not, major content providers are key to the success of a content retail site.

From a technical standpoint, Scribd’s subscription service has more in common with music apps like Rhapsody and Spotify than with video services like Netflix.  Like those music services, Scribd is mainly a “streaming” service, a/k/a “cloud reading,” in that it retrieves content in small chunks instead of downloading entire e-books but also gives users the option of downloading content to their mobile devices.  (Thereby enabling me to use it on the subways in NYC.)  Files stored on mobile devices are obfuscated or encrypted, so that users will not have access to them anymore if they cancel their subscriptions.  And also analogously to the interactive streaming music services, Scribd uses a simple proprietary “good enough” encryption scheme instead of a heavyweight name-brand DRM technology such as the Adobe DRM used with the Nook, Kobo, Sony Reader, and Bookish systems.

Although Scribd is the first paid subscription service with major-publisher licensing, it’s actually not the first way to read major-publisher trade e-books on a time-limited basis: OverDrive introduced OverDrive Read, an HTML5-based cloud reading app for its public library e-lending service, a year ago.

In fact, OverDrive Read is currently the only (legal) way to read frontlist e-book titles from major publishers through a browser app on a time-limited basis.  And that leads to an important difference between Scribd’s service and interactive streaming music services: HarperCollins is only licensing backlist titles, not frontlist (latest bestsellers).  From the publishers’ point of view, this is a smart move that other Big Five publishers will most likely follow.

In that respect, Scribd could become more like Netflix than Rhapsody or Spotify, in that Netflix only offers movies in the home entertainment window — Hollywood’s rough equivalent of “backlist.”  In contrast, the major music labels licensed virtually their entire catalogs to interactive streaming services from the start, save only for some high-profile artist holdouts such as the Beatles and Led Zeppelin.  Instead, the record labels have had to settle for (hard-won) price differentiation between top new releases and back catalog for paid downloads.  Just as readers who want the latest frontlist titles in print have to pay for hardback, those who want them as e-books will have to buy them.  (Or borrow them from the library.)

*The story of Rhapsody is somewhat sad.  For music geeks like myself, the service was a revelation — a truly new way to listen to and explore music.  But Rhapsody slogged through years of difficulty communicating the value of subscription services to users amid numerous ownership changes.  Subscribership grew gradually and plateaued at about a million paying users; then it suffered unfairly from the tsunami of hype around Spotify’s US launch in 2011.  It didn’t help that Rhapsody took too long to release a halfway decent mobile client; but otherwise Spotify’s functionality was virtually identical to Rhapsody at that time.  Now Rhapsody is struggling yet again as it attempts to expand to markets where Spotify is already established, training its 24 million users to expect free on-demand streaming with ads while losing money hand over fist.  And in the latest insult to its pioneering history, a 6,000-word feature on Spotify in Mashable — a tome by online journalism standards — mentions Rhapsody not once.

E-Book Watermarking Gains Traction in Europe October 3, 2013

Posted by Bill Rosenblatt in DRM, Europe, Publishing, United States, Watermarking.
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The firm Rüdiger Wischenbart Content and Consulting has just released the latest version of Global eBook, its overview of the worldwide ebook market.  This sweeping, highly informative report is available for free during the month of October.

The report contains lots of information about piracy and rights worldwide — attitudes, public policy initiatives, and technologies.  A few conclusions in particular stand out.  First, while growth of e-book reading appears to be slowing down, it has reached a level of 20% of book sales in the U.S. market (and even higher by unit volume).  This puts e-books firmly in the mainstream of media consumption.

Accordingly, e-book piracy has become a mainstream concern.  Publishers — and their trade associations, such as the Börsenverein des Deutschen Buchhandels in Germany, which is the most active on this issue — had been less involved in the online infringement issue than their counterparts in the music and film industries, but that’s changing now.  Several studies have been done that generally show e-book piracy levels rising rapidly, but there’s wide disagreement on its volume.  And virtually no data at all is available about the promotional vs. detrimental effects of unauthorized file-sharing on legitimate sales.  Part of the problem is that e-book files are much smaller than music MP3s or (especially) digital video or games; therefore e-book files are more likely to be shared through email (which can’t be tracked) and less likely to be available through torrent sites.

The lack of quantitative understanding of infringement and its impact has led different countries to pursue different paths, in terms of both legal actions and the use of antipiracy technologies.  Perhaps the most surprising of the latter trend — at least to those of us on this side of the Atlantic — is the rapid ascendancy of watermarking (a/k/a “social DRM”) in some European countries.  For example:

  • Netherlands: Arbeiderspers/Bruna, the country’s largest book publisher, switched from traditional DRM to watermarking for its entire catalog at the beginning of this year.
  • Austria: 65% of the e-books available in the country have watermarks embedded, compared to only 35% with DRM.
  • Hungary: Watermarking is now the preferred method of content protection.
  • Sweden: Virtually all trade ebooks are DRM-free.  The e-book distributor eLib (owned by the Swedish media giant Bonnier), uses watermarking for 80% of its titles.
  • Italy: watermarking has grown from 15% to 42% of all e-books, overtaking the 35% that use DRM.

(Note that these are, with all due respect to them, second-tier European countries.  I have anecdotal evidence that e-book watermarking is on the rise in the UK, but not much evidence of it in France or Germany.  At the same time, the above countries are often test beds for technologies that, if successful, spread to larger markets — whether by design or market forces.)

Meanwhile, there’s still a total absence of data on the effects of both DRM and watermarking on users’ e-book behavior — which is why I have been discussing with the Book Industry Study Group the possibility of doing a study on this.

The prevailing attitude among authors is that DRM should still be used.  An interesting data point on this came back in January when Lulu, one of the prominent online self-publishing services, decided to stop offering authors the option of DRM protection (using Adobe Content Server, the de facto standard DRM for ebooks outside of the Amazon and Apple ecosystems) for ebooks sold on the Lulu site.  Lulu authors would still be able to distribute their titles through Amazon and other services that use DRM.

Lulu announced this in a blog post which elicited large numbers of comments, largely from authors.  My pseudo-scientific tally of the authors’ comments showed that they are in favor of DRM — and unhappy with Lulu’s decision to drop it — by more than a two-to-one margin.  Many said that they would drop Lulu and move to its competitor Smashwords, which continues to support DRM as an option.  Remember that these are independent authors of mostly “long tail” titles in need of exposure, not bestselling authors or major publishers.

One reason for Lulu’s decision to drop DRM was undoubtedly the operational expense.  Smashwords’ CEO, Mark Coker, expressed the attitudes of ebook distributors succintly in a Publishers Weekly article covering Lulu’s move when he said, “What’s relevant is whether the cost of DRM (measured by fees to Adobe, [and for consumers] increased complexity, decreased availability, decreased sharing and word of mouth, decreased customer satisfaction) outweigh the benefits[.]”  As we used to say over here, that’s the $64,000 question.

Copyright and Accessibility June 19, 2013

Posted by Bill Rosenblatt in Events, Law, Publishing, Standards, Uncategorized.
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Last week I received an education in the world of publishing for print-disabled people, including the blind and dyslexic.  I was in Copenhagen to speak at Future Publishing and Accessibility, a conference produced by Nota, an organization within the Danish Ministry of Culture that provides materials for the print-disabled, and the DAISY Consortium, the promoter of global standards for talking books.  The conference brought together speakers from the accessibility and mainstream publishing fields.

Before the conference, I had been wondering what the attitude of the accessibility community would be towards copyright.  Would they view it as a restrictive construct that limits the spread of accessible information, allowing it to remain in the hands of publishers that put profit first?

As it turns out, the answer is no.  The accessibility community, generally speaking, has a balanced view of copyright that reflects the growing importance of the print disabled to publishers as a business matter.

Digital publishing technology might be a convenience for normally sighted people, but for the print disabled, it’s a huge revelation.  The same e-publishing standards that promote ease of production, distribution, and interoperability for mainstream consumers make it possible to automate and thus drastically lower the cost and time to produce content in Braille, large print, or spoken-word formats.

Once you understand this, it makes perfect sense that the IDPF (promoter of the EPUB standards for e-books) and DAISY Consortium share several key members.  It was also pointed out at the conference that the print disabled constitute an audience that expands the market for publishers by roughly 10%.  All this adds up to a market for accessible content that’s just too big to ignore.

As a result, the interests of the publishing industry and the accessibility community are aligning.  Accessibility experts respect copyright because it helps preserve incentives for publishers to convert their products into versions for the print disabled.  Although more and more accessibility conversion processes can be automated, manual effort is still necessary — particularly for complex works such as textbooks and scientific materials.

Publishers, for their part, view making content accessible to the print disabled as part of the value that they can add to content — value that still can’t exist without financial support and investment.

One example is Elsevier, the world’s largest scientific publisher.  Elsevier has undertaken a broad, ambitious program to optimize its ability to produce versions of its titles for the print disabled.  One speaker from the accessibility community called the program “the gold standard” for digital publishing.  Not bad for a company that some in the academic community refer to as the Evil Empire.

This is not by any means to suggest that publishers and the accessibility community coexist in perfect harmony.  There is still a long way to go to reach the state articulated at the conference by George Kerscher, who is both Secretary General of DAISY and President of IDPF: to make all materials available to the print disabled at the same time, and for the same price, as mainstream content.

The Future Publishing and Accessibility conference was timed to take place just before negotiations begin over a proposed WIPO treaty that would facilitate the production of accessible materials and distribution of them across borders.  The negotiations are taking place this and next week in Marrakech, Morocco.  This proposed treaty is already laden with concerns from the copyright industries that its provisions will create opportunities for abuse, and reciprocal concerns from the open Internet camp that the treaty will be overburdened with restrictions designed to limit such abuse.  But as I found out in Denmark last week, there is enough practical common ground to hope that accessibility of content for the print disabled will continue to improve.

The Coming Two-Tiered World of Libary E-book Lending June 4, 2013

Posted by Bill Rosenblatt in Libraries, Publishing, Services, United States.
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A group of public libraries in California recently launched a beta version of EnkiLibrary, an e-book lending system that the libraries run themselves.  EnkiLibrary is modeled on the Douglas County Libraries system in Colorado.  It enables libraries to acquire e-book titles for lending in a model that approximates print book acquisition more closely than the existing model.

Small independent publishers are making their catalogs available to these library-owned systems on liberal terms, including low prices and a package of rights that emulates ownership.  In contrast, major trade publishers license content to white-label service providers such as OverDrive under a varied, changing, and often confusing array of conditions — including limited catalog, higher prices than those charged to consumers, and limitations on the number of loans.  The vast majority of public libraries in the United States use these systems: they choose which titles to license and offer those to their patrons.

Welcome to the coming two-tiered world of library e-book lending.  E-lending systems like EnkiLibrary may well proliferate, but they are unlikely to take over; instead they will coexist with — or, in EnkiLibrary’s own words, “complement” — those used by the major publishers.

The reason for this is simple: indie publishers — and authors, working through publisher/aggregators like Smashwords — prioritize exposure over revenue, while for major publishers it’s the other way around.  If more liberal rights granted to libraries means that borrowers “overshare” e-books, then so be it: some of that oversharing has promotional value that could translate into incremental, cost-free sales.

In some ways, the emerging dichotomy in library e-lending is like the dichotomy between major and indie labels regarding Internet music sales.  Before 2009, the world of (legal) music downloads was divided into two camps: iTunes sold both major and indie music and used DRM that tied files to the Apple ecosystem; smaller services like eMusic sold only indie music, but the files were DRM-free MP3s that could be played on any device and copied freely.  That year, iTunes dropped DRM, Amazon expanded its DRM-free MP3 download service to major-label music, and eventually eMusic tapered off into irrelevance.

Yet it would be a mistake to stretch the analogy too far.  Major publishers are unlikely to license e-books for library lending on the liberal terms of a system like EnkiLibrary or Douglas County’s in the foreseeable future; the market dynamics are just not the same.

In 2008, iTunes had an inordinately large share of the music download market; the major labels had no leverage to negotiate more favorable licensing terms, such as the ability to charge variable prices for music.  The majors had tried and failed to nurture viable competitors to iTunes.  Amazon was their last and best hope.  iTunes already had an easy-to-use system that was tightly integrated with Apple’s own highly popular devices.  It became clear that the only meaningful advantage that another retailer could have over iTunes was lack of DRM.  So the major labels were compelled to give up DRM in order to get Amazon on board.  By 2009, DRM-free music from all labels became available through all major retailers.

No such competitive pressures exist in the library market.  On the contrary, libraries themselves are under competition from the private sector, including Amazon.  Furthermore, arguments that e-book lending under liberal terms leads to increased sales for small publishers won’t apply very much to major publishers, for reasons given above.

Therefore, unless libraries get e-lending rights under copyright law instead of relying on “publishers’ good graces” (as I put it at the recent IDPF Digital Book 2013 conference) for e-lending permission, it’s likely that libraries will have to labor under a two-tiered system for the foreseeable future.  Douglas County Libraries director Jamie LaRue — increasingly seen as a revolutionary force in the library community — captured the attitude of many when he said, “It isn’t the job of libraries to keep publishers in business.”  He’s right.  Ergo the stalemate should continue for some time to come.

R.I.P. TOC May 9, 2013

Posted by Bill Rosenblatt in Events, Publishing.
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Here’s something that’s a little off topic for this blog but can’t be covered in 140 characters.

The O’Reilly Tools of Change for publishing (TOC) conference has been abruptly cancelled after a seven-year run that culminated in its last show in NYC earlier this year.  The announcement was made by Tim O’Reilly, CEO of the iconic tech publishing company O’Reilly Media, on his blog late last week – along with some hints that O’Reilly may be commercializing the editorial workflow tool (Atlas) that O’Reilly has been developing in-house and using with its authors.

This is a real loss to the publishing community.  It echoes the trajectory of Seybold, which had previously been the go-to conference for innovation and technology in publishing: Seybold rose with the desktop publishing revolution of the early 1990s, got hit badly in the dot-bomb crash of the early 2000s, and never recovered.  Both conferences, in their heydays, attracted over a thousand paid attendees and featured well-constructed, jam-packed, multi-track agendas and large exhibit halls as well as a real sense of community among attendees, vendors, and speakers.

As someone who (in a smaller way) has been involved in conference production for over a decade, my view is that TOC was one of the best-organized and best-produced conferences ever — thanks to co-chairs Joe Wikert and Kat Meyer and their team.   Their use of the web to organize the agenda, speakers, and community was unparalleled.  The agendas were canny, creative mixes of basic education for publishers and sessions on innovative technologies and business practices; accordingly, the speakers were mixes of old hands and new upstarts.  Keynote speakers weren’t the usual publishing industry luminaries but “outside the box” thinkers like, most recently, the media theorist/futurist Douglas Rushkoff.  Hallway buzz was palpable.

While I don’t know the exact reasons why O’Reilly pulled the plug on TOC, I would guess that they were mainly financial.  Kat Meyer told me that TOC was a poor stepchild among other much bigger events that O’Reilly produces, such as Strata (Big Data), oscon (open source), Velocity (web development), and Web 2.0 Summit (now also discontinued).  It’s not at all unusual in the tech world for conferences to appear and disappear as tech trends wax and wane; for example, Jupitermedia, with which I produced the Digital Rights Strategies conferences in the mid-2000s, created and disbanded conferences all the time.

O’Reilly has a product mix that’s not unlike other B2B publishers such as Reed Business Information, McGraw-Hill, and United Business Media (not to mention digital natives like TechCrunch): its publications, conferences, training, and other services are all interdependent and represent cross-selling opportunities.  When viewed this way, TOC was an anomaly: a conference about publishing, put on by a company whose real business is information technology (and that, like those others, happened to start out as a pure-play publisher in its field).

O’Reilly had few synergies between TOC and its other properties.  Conferences are more usually put on by organizations that have other lines of business — such as industry trade associations (AAP, ALA, NAB, CES), market researchers (Outsell, Gartner), or vendors (Apple, Oracle, SAP), as well as B2B publishers.  TOC was, by that perspective, a standalone property.  It’s difficult to operate a standalone event and make a profit, particularly when you spend as much on infrastructure and community (and Manhattan hotel space) as O’Reilly did.

And the publishing industry is not exactly known for its lavish budgets.  One commenter on a publishing blog demurred at having to pay US $1000 to attend TOC for two days; in contrast, conferences like Velocity and Strata charge as much as double that amount.  As Tim O’Reilly himself commented at his last TOC keynote speech, “Why are we here? It’s not to make our fortune.”

There are other conferences about publishing, put on by companies that publish about publishing — such as Digital Book World (F&W Publishing) and Publishing Business Conference (NAPCO).   Those organizations are probably celebrating TOC’s hasty demise, but it remains to be seen whether they will fill the void it has created.

 

 

 

Awareness Grows over Digital First Sale February 19, 2013

Posted by Bill Rosenblatt in Business models, Law, Publishing.
1 comment so far

What would happen if the law were to definitively decide that users should get the same rights of ownership over digital downloads as they do with physical media products such as books, CDs, and DVDs?  A growing crescendo of events over the last few weeks indicates a growing awareness of this fascinating topic.

Let’s start with late last month, when Amazon was granted a U.S. patent on a scheme for reselling digital objects.  The patent describes a scheme for transferring “ownership” of digital content objects from one user to another, possibly with limits on the number of transfers, and handling the e-commerce behind each such transaction.

Digital resale is possible now. For example, the startup ReDigi is doing it for music downloads from iTunes and Amazon.  The question is not whether it’s technically feasible to support digital resale with reasonable safeguards against abuse of the process (i.e., “reselling” your content while keeping your own copies).  The question is whether doing so requires a license from content owners, or whether users have a legal right to resell their content without permission.

In the former case, any service (like ReDigi) that facilitates resale would have to pay royalties to copyright owners on every transaction.  In the latter case, it need not pay anything.  Since resold digital content is identical to “new” content, this would have highly disruptive implications for publishers and others in the value chain.  The law is not clear on this point, but it may become clearer within the next couple of years through litigation, such as Capitol Records’ lawsuit against ReDigi, and the efforts of a lobbying group called the Owners’ Rights Initiative.

Amazon’s patent does not take a position on whether digital resale requires the copyright owner’s permission; it simply discloses a mechanism for doing digital resale.  And of course just because Amazon has a patent does not mean it intends to implement such a system; Amazon was granted about 300 patents in 2012.  Still, the issuance of the patent prompted Wired to run an article about digital first sale and its implications two weeks ago.

That brings us to last week, when the O’Reilly Tools of Change for Publishing (TOC) took place in NYC.  TOC is the preeminent conference on technology and innovation in publishing.  Just before the conference, the TOC folks held an invitation-only Executive Roundtable featuring John Ossenmacher, CEO of ReDigi.  O’Reilly Media, a publisher of books and other information for IT professionals and a bellwether of technological innovation in publishing, confirmed that it is in talks with ReDigi to take the company into resale of e-books.  The room was filled with traditional publishing executives who had a more skeptical view, though Ossenmacher survived the ordeal well.

The TOC organizers had asked me to give a talk on digital first sale at the conference; I did so later in the week (slides available on SlideShare).  The room was packed with a broad mixture of editorial, business, and technology folks from the publishing industry.  Publishers Weekly, the leading trade publication of the book publishing industry, decided that the topic was important enough to feature in an article summarizing my presentation.  Most of the attendees were surprised at the highly disruptive implications for publishers, retailers, and libraries as well as users, though a few expressed the idea that digital resale is yet another inevitable type of change to legacy business models in the content industries.

Digimarc Acquires Attributor December 4, 2012

Posted by Bill Rosenblatt in Fingerprinting, Images, Publishing, Watermarking.
1 comment so far

Digimarc announced yesterday that it has acquired Attributor Corp.  Attributor, based in Silicon Valley, is one of a handful of companies that crawls the Internet looking for instances of copyrighted material that may be infringing, using a pattern-recognition technology akin to fingerprinting.  Digimarc is a leader in digital watermarking technology, with a large and significant portfolio of IP in the space.  The acquisition price was a total of US $7.5 Million in cash, stock, and contingent compensation.

This is a synergistic and strategically significant move for Digimarc.  A few years ago, Digimarc had pruned its efforts to create products and services for digital media markets outside of still images.  It had decided, in effect, to leave products and services to its IP licensees, companies such as Civolution of the Netherlands and MarkAny of South Korea.  Attributor’s primary market is book publishing, with customers including four out of the “Big Six” trade book publishers as well as several leading educational and STM (scientific, technical, medical) publishers.

Digimarc intends to leverage Attributor’s relationships with book publishers to help it expand its watermarking technology into that market and to move into other markets such as magazine and financial publishing.  The company cited the explosive growth in e-books as a reason for the acquisition.

Beyond that, Digimarc’s acquisition is another sign of the increasing importance of infringement monitoring services; the previous such sign came over the summer, when Thomson Reuters acquired MarkMonitor.

There are two reasons for this increase in importance.  First is the rise of so-called progressive response legal regimes: copyright owners can monitor the Internet and submit data on alleged infringements to a legal authority, which sends users increasingly strong warning messages and, if they keep on infringing, potentially suspends their ISP accounts.  The most advanced progressive response regime is HADOPI in France, early results from which are encouraging.  The Copyright Alert System is supposedly gearing up for launch in the United States.  A handful of other countries have progressive response in place or in process as well.

The second reason for the increasing importance of so-called piracy monitoring is that copyright owners are starting to realize the value of the data they generate, beyond catching infringers.  Piracy is evidence of popularity of content — of demand for it.  The data that these services generate can be valuable for analytics purposes, to see who is interested in the content and in what ways.  Big Champagne, for example, has been supplying this type of data to the music industry for may years.  Attributor has been working on a new service that integrates piracy data with social media analytics; Digimarc intends to integrate this into its own data offerings for the image market.

In fact, we’ll have a discussion on the value of piracy data tomorrow at Copyright and Technology NYC 2012.  Leading the discussion will be Thomas Sehested of MarkMonitor.  There’s little doubt he will be called upon to talk about his new competition.

You Bought It, You Own It. But Can a Library Lend It? November 12, 2012

Posted by Bill Rosenblatt in Law, Libraries, Publishing.
6 comments

I’ve been writing regularly about the battle that libraries are fighting over e-book lending — a battle whose outcome doesn’t look good for libraries right now.  Libraries can only lend e-books at the pleasure of publishers and not through any legal right.  I have said that libraries’ best shot at changing their fortunes as the reading world transitions to digital is to try to get e-lending rights enshrined in the law.

I also didn’t believe — with all due respect to the American Library Association and other library advocacy groups — that the library community stood much of a chance of getting Congress to pay attention to this issue.  I had thought that if there were any path to change it would be through the long, hard slog of litigation.

That is, until I read about the Owners’ Rights Initiative, a lobbying group that began life last month.  “You bought it, you own it” is the ORI’s mantra.  It’s run by Andrew Shore, a partner in a Washington law and lobbying boutique with experience in international trade issues.

The ORI unites a number of constituencies that stand to gain if the First Sale Doctrine is extended to digital content.  Recall that First Sale, section 109 of the US copyright law, says that once you legally obtain a copyrighted work, you can do with it as you please without further involvement from the publisher: resell it, lend it, give it away, use it to line a bird cage.  But First Sale is currently deemed not to apply to digital files, such as e-books and software.

Libraries have found some interesting allies in the ORI. Most of them are companies (or trade associations representing companies) that sell used merchandise, including eBay and various used computer equipment dealers.  Used book sellers are there (Powell’s Books, Chegg).  The video rental kiosk operator Redbox has joined to protect its interests as it undoubtedly plans to move from DVDs and Blu-rays to digital files.  A few companies that facilitate e-commerce transactions are on board.

This textbook example of a “strange bedfellows” coalition does have synergies.  It would have been inconceivable for companies like eBay and Redbox, let alone the several sellers of used enterprise software, to get anyone to take them seriously on this issue.  Tying their opportunism over making money on used software and videos to the issue of public library lending gives them a much better story to tell.  For their part, libraries get money and resources far beyond what they can muster on their own, plus a degree of business savvy that is outside of libraries’ comfort zone.

Ironically, the ORI jelled around a court case that is about hardcopy books, not digital content: Kirstaeng v. Wiley, which is currently before the Supreme Court.  The case is about college textbooks (published by John Wiley & Sons) that Supap Kirtsaeng purchased in Thailand and has been reselling on eBay in the U.S.  The Supreme Court has to determine how to reconcile two provisions of the copyright law that are at odds with one another in this case: First Sale says that the textbooks are his to resell in the U.S., despite the fact that the prices in Thailand are lower than they are here.  On the other hand, section 602 of the law lets a publisher block importation of gray-market copies of its works into the country.

Even though Kirstaeng is about hardcopy, it’s not hard to see how the case could apply to digital works if the Supreme Court finds for Wiley.  One of the ORI members, Quality King Distributors, was involved in a conflict between 109 and 602 in 1998 when another case, Quality King v. L’anza, went to the Supreme Court.  Writing for the Court in that case, Justice Stephens specifically excluded “licensees” from First Sale rights because they are “non-owners” of copyrighted works.  Because purchasers of digital files are currently considered licensees rather than owners, Stephens’s opinion could be interpreted to mean that they don’t get First Sale rights — though that remains to be tested.

The ORI looks like an interesting vehicle for the library community to get e-lending rights enshrined in law.  Even so, it seems unlikely to succeed.  First of all, the Kirstaeng case is an example of how hard the media industry is prepared to fight against First Sale: Wiley has hired no less than Ted Olson, the former U.S. Solicitor General, to argue its case.

Textbook publishers like Wiley don’t like First Sale — whether digital or hardcopy — because it enables the huge market for used textbooks; publishers would love to see the used textbook market go away.  Movie studios hate it because it would harm their carefully maintained system of release windows.  In general, media companies — as well as digital content retailers like Apple and Amazon — are against digital First Sale because it would create downward pricing pressure, as the “used” copies of digital content are (unlike their physical counterparts) not inferior to “new” ones.

The issue that’s likely to carry the day, if and when digital First Sale legislation is ever considered, is the one that the U.S. Copyright Office pointed out in its 2001 report on the subject: for digital First Sale to work fairly, users would have to delete their copies of files once they gave, lent, or resold them to someone else.  Either users would have to be trusted to take this additional step voluntarily (including deletion of copies on all their devices, backups, etc.) or there would have to be a mandatory mechanism, similar to but much more sophisticated than the one that ReDigi has developed for music files, to delete the files automatically.

Neither contingency seems very likely to be enshrined in legislation.  This augurs an unsuccessful outcome for libraries.  Libraries don’t need the full set of First Sale rights in order to lend e-books without permission from publishers.  As I have argued, libraries can get by with narrower rights; such rights could be granted through amendments to Section 108 of the copyright law, the section that extends extra rights to libraries and archives.

So the bottom line on libraries and the Owners’ Rights Initiative is that its critical mass is likely to get libraries more attention in Congress than they might on their own, but it’s unlikely to get the result they need to stay relevant as reading moves to e-books.

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