Accepting Amazon’s DRM makes it impossible to challenge its monopoly

Amazon was the target of some well-deserved criticism this week for making the anti-customer move of suspending sales of books published by Hachette, reportedly as a hardball tactic in its ongoing negotiations over ebook revenue splits. In an excellent article, Mathew Ingram connects this with other recent bad behavior by Internet giants leveraging their monopolies. Others have made the connection between this move and a similar one in 2010, when Amazon pulled Macmillan books off its digital shelves.

That dispute took place a little over four years ago, and ended with Amazon giving in and issuing a statement that people found a bit strange. Here’s a quote:

We want you to know that ultimately, however, we will have to capitulate and accept Macmillan’s terms because Macmillan has a monopoly over their own titles, and we will want to offer them to you even at prices we believe are needlessly high for e-books.

“Monopoly” was a funny choice of words there. The author John Scalzi, whose piece decrying Amazon’s actions at the time is still very much worth reading, memorably took issue:

And not only a forum comment, but a mystifyingly silly one: the bit in the comment about Amazon having no choice but to back down in the fight because “Macmillan has a monopoly over their own titles” was roundly mocked by authors, some of whom immediately started agitating against Amazon’s “monopoly” of the Kindle, or noted how terrible it was that Nabisco had a “monopoly” on Oreos.

Monopoly, of course, is economically the correct term. Publishers of books that are restricted by copyright have a set of exclusive rights granted to them by law. Their monopoly looks distinct from Amazon’s near-monopoly bookseller position, though, because it’s one agreed to in public policy. In a sense it is also more absolute, and less vulnerable to challenge, because it’s a legal monopoly, and not just a market monopoly.

To the extent Amazon has a monopoly on selling paper books, then, it could be challenged not just by legal action (such as antitrust investigation) but by other businesses competing. There would be some extreme logistical difficulties, and disparities created by economies of scale that might be impossible to overcome, but in principle other businesses are able to compete for Amazon’s market position on physical books.

Copyright behaves differently: when it comes to Macmillan or Hachette’s books, nobody may undercut prices by making production more efficient, or design prettier covers, or edit the text into a more compelling presentation. Where that’s a good thing, it’s because we’ve reached it by public policy. We’ve granted copyright holders an inviolable (if limited) legal monopoly because we as a society like the results.1

A very real danger, though, is if Amazon can take the challengeable market monopoly it has put together, and ratchet it into an unchallengeable legal monopoly. That is exactly what DRM does.

By putting DRM on its digital products—ebooks and audio books—Amazon gets the legal backing of the Digital Millennium Copyright Act’s anti-circumvention restrictions on its products. This isn’t for the advancement of public policy goals, either; Amazon gets to create the private law it wants to be enforced. Thanks to DRM, Kindle users are no longer free to take their business elsewhere—if you want a Kindle book, you must purchase it from Amazon.

Fortunately Kindle software can, for now, read other non-restricted formats. But the functionality is limited, and not guaranteed to stick around. And it’s a one-way street: other software and hardware may not read ebooks in the Kindle format. Customers who amass a Kindle library will find no compatible non-Amazon reader. The fact that individual users can usually circumvent the DRM, too, doesn’t help businesses trying to compete in that space.

Amazon has a lot of fans, and they tend to ascribe its rise as a bookseller for its aggressively pro-customer stance. If it drops that stance, even major fans would probably agree that it no longer deserves the throne. Unfortunately, DRM takes the conditional monopoly that customers like (you get to be the largest bookseller so long as you’re good to your customers) and replaces it with an unconditional one (you once achieved monopoly and that is now permanent).

This week’s sketchy move against Hachette looks like a willingness to throw its customers under a bus in the name of better business deals. If publishers continue to insist on DRM, and if customers continue to allow it, we lose our ability to object.

  1. Of course, that is only as true as copyright policy reflects the will of the public, which it doesn’t, but it’s something to aspire to. []

Do Androids Dream of Electric Free Speech?

A new paper called “Do Androids Dream of Electric Free Speech?” argues that legal scholars could benefit from looking more to science fiction works when writing about concepts like copyright, censorship, and privacy. It’s an interesting paper, and spends time going into some theories of why sci-fi is relevant as well as examining the issues that the genre explores. From the article:

That said, all legal scholarship does not need to uniform, and taking some risks by creating plausible (even if not probable) hypothetical examples based on the visions of science fiction authors offers the opportunity to enhance the value of legal scholarship to the field of media and communications law. We researchers are in a position to answer questions that may not be as practical or necessary for judges and legislators today, but may very well be considered by them in the future if and when some of the projections become reality.

I had a chance to speak with the author, Daxton “Chip” Stewart, after writing about my blog post on the lack of copyright maximalist dystopian sci-fi on Twitter. I was surprised and happy to see that he ended up citing that blog post and some of the works discussed in it, as well as a post I wrote about Cory Doctorow’s Pirate Cinema. But I’d have enjoyed the paper even without the citations!

Supreme Court Clouds media mentions

My short audio project Supreme Court Clouds (2014) has gotten a little bit of media attention (largely on the back of my, y’know, real observations about the Supreme Court and technology.)

It was described in a recent Reuters story, along with a quote from me about the level of tech-savvy in the Supreme Court. It is also linked in the opening sentence of this Guardian column, which is great.

The Supreme Court’s real technology problem

I spent a lot of the last week shaking my head at the commentary on the Supreme Court and its (lack of) technical expertise. Much of the criticism came in response to the oral arguments in Aereo, and broke down in two areas: it either misunderstood the nature of Supreme Court oral arguments and their transcripts, or mistook familiarity with a handful of Silicon Valley products with actual tech savviness.

But in a series of cases yesterday about law enforcement searches of cell phones, we caught a glimpse of the Supreme Court’s real technology problem. Here’s what it comes down to: it’s not essential that the Court knows specifics about how technology itself works—and as Timothy Lee argues, that might even tempt them to make technology-based decisions that don’t generalize well. However, it is essential that the Court understands how people use technology, especially in areas where they’re trying to elaborate a standard of what expectations are “reasonable.”

So when Chief Justice Roberts suggests that a person carrying two cell phones might reasonably be suspected of dealing drugs, that raises major red flags. Not because of any special facts about how cell phones work, but because (for example) at least half of the lawyers in the Supreme Court Bar brought two cell phones with them to the courthouse that day. Should those attorneys (along with the many, many other people who carry multiple devices) reasonably expect less privacy because the Chief Justice is out of touch with that fact?

Contrast that with Justice Kagan’s point about storage location in the same argument. Justice Kagan suggested, correctly, that people don’t always know what is stored on their device and what is stored “in the cloud.” The actual answer to that question should be immaterial; the point is that it’s absurd for a person’s privacy interest to hinge on which hard drive private data is stored on.1 Instead, the important fact here, which Justice Kagan recognizes, is that the distinction between local and cloud storage just doesn’t matter to many people, and so it can’t be the basis of a reasonable-expectation-of-privacy test.

If you’re feeling less generous, you might take Justice Kagan’s point as evidence that she herself doesn’t know where her files are stored. And in fact, that’s probably true—but it’s not important. You don’t actually need to know much about filesystems and remote storage to know that it’s a bad idea for the law to treat it differently.

That’s not to say that technical implementation details are never relevant. Relevant details, though, should (and almost always do) get addressed in the briefs, long before the oral argument takes place. They don’t usually read like software manuals, either: they’re often rich with analogies to help explain not just how the tech works, but what body of law should apply.

What can’t really be explained in a brief, though, is a community’s relationship with a technology. You can get at parts of it, citing authorities like surveys and expert witnesses, but a real feeling for what people expect from their software and devices is something that has to be observed. If the nine justices on the Supreme Court can’t bring that knowledge to the arguments, the public suffers greatly. Again, Justice Kagan seems to recognize this fact when she says of cell phones:

They’re computers. They have as much computing capacity as ­­ as laptops did five years ago. And ­­ and everybody under a certain age, let’s say under 40, has everything on them.

Justice Kagan is not under 40, and might not have everything stored on a phone (or on an online service accessible through her phone). But that quote shows me that she at least knows where other people’s expectations are different. Chief Justice Roberts’s questions show me exactly the opposite.

The justices live an unusual and sheltered life: they have no concerns about job security, and spend much of their time grappling with abstract questions that have profound effects on this country’s law. But if they fail to recognize where their assumptions about society and technology break from the norm—or indeed, where they are making assumptions in the first place—we’re all in trouble.

  1. That speaks to a need to revisit the sort-of ridiculous third-party doctrine, which Justice Sotomayor has suggested, but one battle at a time. []

Mini Metro fan art: SF BART

I’ve been playing a lot of Mini Metro, a (still alpha) transit-planning puzzle game. It’s been recommended to me a dozen times by people who know how I feel about transit maps, and that element of the game is really great, but it’s also just a lot of fun to play.

In any case, it’s got a very distinctive style, and I wanted to see more maps with that look. So I made a version of the San Francisco BART map in that look.

bartminimetro