In a lawsuit filed in New York last week, three independent bookstores are seeking relief from what they refer to as monopolistic practices by Amazon and the Big Six publishers regarding ebooks. At issue is the digital rights management (DRM) that locks ebooks purchased through Amazon to the Kindle platform. According to a February 20 article on Huffington Post, the three plaintiff bookstores want to “be able to sell open-source and DRM-free books that could be used on the Kindle or other electronic readers.” While libraries can certainly empathize with the plight of the three plaintiffs, who find themselves shut out from the ebook marketplace, I see some critical errors with this case.
The primary source of confusion seems to stem from a lack of technical knowledge on the part of the plaintiffs (Book House of Stuyvesant Plaza in Albany, New York; Fiction Addiction in Greenville, South Carolina; and Posman Books in New York City) and their legal team. For example, one of the claims in the suit states that “none of the BIG SIX have entered into any agreements with any independent brick-and-mortar bookstores or independent collections to sell their ebooks.” And yet if you visit indiebound.org, the website of the American Booksellers Association, a prominent sidebar graphic proclaims “INDIES SELL EBOOKS”; the click-through page for that graphic lists hundreds of independent bookstores around the country that sell ebooks via Kobo.
The problem is that this suit attempts to conflate Amazon with the Big Six when in fact the e-tailer and the publishing houses are more often opposed on key issues. What this suit really seems to seek is not for case law to establish the bookstores’ right to sell ebooks, but for the bookstores to be able to sell Kindle-formatted ebooks. Again, the nuances of the technology make this a complicated issue. Despite being a proprietary format (i.e., owned by and used solely by Amazon on the Kindle Platform), the .azw and .kf8 ebook formats are open for use. Amazon even provides a free download, KindleGen, to help you convert your ebook into Kindle formats.
So Amazon isn’t really stopping bookstores from selling ebooks in the Kindle format. In fact, Baen Books sells Kindle-formatted ebooks directly through its online bookstore. The key, however, is that the Baen ebooks have no DRM in the first place. So really, this suit should be directed solely against the Big Six publishers and their insistence on DRM—an argument that isn’t likely to get very far. If Macmillan is serious about selling Tor/Forge imprint ebooks DRM-free, then an independent bookstore could sell a customer those ebooks, run them through a converter, and deliver them in a Kindle-compatible format. The root problem is DRM itself.
DRM might also end up being the reason why this suit could go nowhere, but in a very interesting way. The suit claims damages not only to the three bookstores named as plaintiffs, but also to consumers in general. “This means that if a consumer would like to read an ebook published by any of the BIG SIX and they choose to buy it from AMAZON they must read it on a Kindle device or via a Kindle app.” The suit then goes on to clarify that there are Kindle apps available for pretty much every platform under the sun on which a consumer might choose (pesky word, “choose”) to read his or her ebook. Or the consumer might choose to take the February 18 advice of PC World and use simple tools to temporarily bypass a Kindle ebook’s DRM by converting it into another format. (That article, incidentally, was published three days after this lawsuit was filed.) Perhaps the court will find that the practice of device-shifting one’s ebooks is an allowed circumvention of DRM. Now wouldn’t that be interesting?
Most likely, however, this case will go nowhere. The plaintiffs are facing a rather large challenge, and the lack of technical understanding shown in the filing places them even further behind.