Sunday, March 15, 2009

One more Kindle 2 complaint

Amazon has invoked the DMCA in an effort to suppress a program that allows people to read e-books from other online stores on their Kindles. I've got some books that I bought from Mobipocket stores to run on a different ebook reader (the iRex, which handles pdf way better than Kindle 2). It would be convenient to transfer them to the Kindle 2. So I was struck by the claim that this would be a DMCA violation. Frankly, I'm having trouble seeing why it's illegal to distribute this code.

First, the code doesn't break any copyright protections, as far as I can see. It just allows other booksellers to enforce their copyright using their favorite DRM scheme. What it does break is Amazon's effort to tie Kindle 2 users to Amazon. Since Amazon is bundling a permanent wireless contract with the Kindle 2, I understand why they want to keep customers coming back to their online store instead of buying elsewhere. But is Amazon's understandable preference enforced by federal law, including a ban on otherwise legal speech?

The DMCA prohibits distribution of code that "is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title." As far as I can tell, the code gives the Kindle 2 a Mobipocket ID that conforms to the Mobipocket DRM system, which allows Kindle owners to read Mobipocket-DRM-protected books on the Kindle.

Is that circumvention? You bet. By allowing access to nonAmazon online bookstores and books, the code circumvents Amazon's bundling system. But is it illegal circumvention of a technological measure that is "controlling access to a work protected under this title"? It's hard to see how.

You can't get access to any more Amazon-protected content with the code than you could get without it. Nothing about Amazon's system that protects copyright has been circumvented. I suppose that the other Mobipocket sites might be able to complain under the DMCA if they were using DRM to keep you from reading their content on Kindles, but they haven't said that, and surely Amazon cannot raise that claim on their behalf.

Maybe the argument is that Amazon is "controlling access to a work protected under this title" because it's saying "there is some copyrighted content that we refuse to let you read on our device." Under that theory, anyone could invoke the DMCA on behalf of technologies that "control" access to content by, well, prohibiting access to that content. That argument would turn the DMCA into the Product Bundling Enforcement Act. Congress can choose to enforce product bundling practices if it wants to, I suppose, but it's hard to believe that the courts would willingly incorporate such a reading into the law and then use that reading to prohibit otherwise legal speech. In fact, as I think about it, this is really a First Amendment two-fer: Amazon is invoking the DMCA to prohibit you from reading certain books, and, to make sure that its prohibition sticks, it is sending its lawyers after anyone who tells you how to circumvent the prohibition. What judge is going to want that reading of an ambiguous law on his CV?

Ok, this is Sunday lawyering without a library, but I really don't get the DMCA claim. What am I missing? Really, if this is the argument that Amazon is making, couldn't the same argument be made by the producers of software designed to child-proof the Internet, allowing them to shut down the sites that encourage kids to circumvent the controls? Come to think of it, wouldn't it also give the Chinese government a DMCA claim against the human rights groups that are trying to beat the Great Firewall? Surely Amazon can't be arguing for such a remarkable reading of the DMCA.