An open letter to DriveThruRPG and the publishers using them

[arkham618]

I don't see how this is any different. If each and every PDF you sold included a EULA, that would be one thing, but no license agreement is included with these PDFs. Now, it could be said that the DRM itself is a form of license agreement, in which case the license, as far as I can tell, does indeed step on my rights to give the PDF away to someone. Such a license is fully within your right to use, and I'm not saying otherwise

So let's be clear, DRM doesn't change the fact that I have the right to give away something I purchase. A EULA (i.e. DRM, in this case), however, can to my understanding, lawfully and legitimately override that right. I fully understand this. If I purchase a game, but I don't like the EULA that says I can't make a backup copy, then I can never make use of the game. "Breaking the seal", as it were, means that I agree with this EULA. So, in the case of DRM, interpreted as your EULA, I won't purchase your PDFs. Why? I don't agree with your EULA.

End-user license agreements are themselves invalid and unenforceable because they unilaterally introduce stipulations after the sale, which is forbidden under contract law. The Supreme Court has said as much, but this does not stop software companies from cowing most consumers into compliance with threats of litigation. For a contract or license to be enforceable, it must be negotiated and agreed upon before any transaction takes place. This is what most people seem to be missing: for DRM to even be legal, its full impact must be disclosed to the consumer before the sale. Otherwise, it is invalid, and (if it reduces the utility of the product while purporting to enhance it) possibly also fraudulent.

 

[Wasgo]

Really? IANAL, but here goes...

[snip]

Whether my reading is correct or not, I don't think it's very nice to try to play semantics games to try to "tie the file to my hard drive" by saying, "that's where the first lawful copy was made and you're stuck with it there." Yes, it's in the interest of the copyright holder to do that to prevent himself from being estopped. But I'd prefer silence on the matter than nothing at all.

It means I can't, for example, under the "attached at the him" interpretation, legally buy a copy for my gaming buddy as a birthday present.

It's not very nice, I agree. And IANAL either, but I intend to be one, specifically in the area of IP law. So I read way too much of this stuff.

Unfortunetely, I'm late for work, so I can't highlight the relevent areas, but here's the executive report on the DMCA, which although isn't law, is a very strong interpretation of the law:

http://www.copyright.gov/reports/studies/dmca/dmca_executive.html

As I said before, it isn't law, but it would take a good lawyer to prove things otherwise.

 

[Wasgo]

End-user license agreements are themselves invalid and unenforceable because they unilaterally introduce stipulations after the sale, which is forbidden under contract law. The Supreme Court has said as much, but this does not stop software companies from cowing most consumers into compliance with threats of litigation. For a contract or license to be enforceable, it must be negotiated and agreed upon before any transaction takes place. This is what most people seem to be missing: for DRM to even be legal, its full impact must be disclosed to the consumer before the sale. Otherwise, it is invalid, and (if it reduces the utility of the product while purporting to enhance it) possibly also fraudulent.

Not true. DMCA is not your friend. DVDs have similar restrictions that are also not disclosed. Electronic protection is a very special area of the law.

 

[The Sigil]

It's not very nice, I agree. And IANAL either, but I intend to be one, specifically in the area of IP law. So I read way too much of this stuff.

Unfortunetely, I'm late for work, so I can't highlight the relevent areas, but here's the executive report on the DMCA, which although isn't law, is a very strong interpretation of the law:

http://www.copyright.gov/reports/studies/dmca/dmca_executive.html

As I said before, it isn't law, but it would take a good lawyer to prove things otherwise.

Thanks for the link, Wasgo. I found the following quote enlightening:

There is no dispute that section 109 applies to works in digital form. Physical copies of works in a digital format, such as CDs or DVDs, are subject to section 109 in the same way as physical copies in analog form. Similarly, a lawfully made tangible copy of a digitally downloaded work, such as a work downloaded to a floppy disk, Zip™ disk, or CD-RW, is clearly subject to section 109.

So, working off my argument above, if I ensure that my copy of a work is downloaded to CD-RW, Zip disk, etc. in the first instance, the DMCA treats that as a copy to which I retain the Right of First Sale. In this case, DRM restrictions do inhibit that right. If I'm reading everything correctly.

--The Sigil

 

[BSF]

Greg,
I have been meaning to respond, but work has been fairly stressful today. I have a game to prep for in less than 2 hours as well, and I am leaving town tomorrow morning for a week. *sigh*

Nevertheless, I wanted to personally thank you for replying to my post. You were able to give me a better idea where the publisher stance might be. I am holding out hope that DriveThruRPG and/or some of the other publishers will choose to address some of my questions/concerns as well because I think open communication will help in the long run. I really am not against any of hte publishers, or against DriveThruRPG. I hope that the electronic market opens up new options for everyone involved. If I have time tonight, I will try to return to the debate. Otherwise, I will check back on the boards when I return. Maybe the whole thing will have blown over by then, or perhaps there will be more food for thought.

Thanks again,
David Moore

 

[Wasgo]

So, working off my argument above, if I ensure that my copy of a work is downloaded to CD-RW, Zip disk, etc. in the first instance, the DMCA treats that as a copy to which I retain the Right of First Sale. In this case, DRM restrictions do inhibit that right. If I'm reading everything correctly.

--The Sigil

Right, but Adobe prevents this by selecting your ebook folder. Moreover, I'm almost entirely sure section 109 does not apply to anything other than music or computer programs. In the hands of any competent lawyer, a pdf would not be classified as a computer program.

From the definitions in the copyright act: A ''computer program'' is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

And digital documents are not instructions, so much as data. While pdfs do control the layout to some degree, they cannot bring about a result without additional programs. This probably would remove it from the program catagory. Basically, U.S. law is having problems right now, because the DMCA more or less trumps fair use. People keep having to fight to regain rights...., which oddly enough is one of the two reasons I intend to go into that area of law.

 

[Creamsteak]

Right, but Adobe prevents this by selecting your ebook folder. Moreover, I'm almost entirely sure section 109 does not apply to anything other than music or computer programs. In the hands of any competent lawyer, a pdf would not be classified as a computer program.

From the definitions in the copyright act: A ''computer program'' is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.

And digital documents are not instructions, so much as data. While pdfs do control the layout to some degree, they cannot bring about a result without additional programs. This probably would remove it from the program catagory. Basically, U.S. law is having problems right now, because the DMCA more or less trumps fair use. People keep having to fight to regain rights...., which oddly enough is one of the two reasons I intend to go into that area of law.

Your location says Canada, are you studying in the US I assume?

Good luck in your field. If I wasn't still trying to get my computer science degree, I'd be trying to get right into that fight with you. So digital documents files and saved states are not protected? Except for music, which is pretty much a document as far as I'm concerned. That's just wrong... those often have just as much value as the programs used to create them. And if copyright laws don't protect documents and saved states, then filesharing of these books would be considered legal? Wow... you have one side of the coin where they are allowed to put as much protection to stop you from your fair use rights, but theres nothing legal stoping you from violating that protection?

 

[Wasgo]

Your location says Canada, are you studying in the US I assume?

Good luck in your field. If I wasn't still trying to get my computer science degree, I'd be trying to get right into that fight with you. So digital documents files and saved states are not protected? Except for music, which is pretty much a document as far as I'm concerned. That's just wrong... those often have just as much value as the programs used to create them. And if copyright laws don't protect documents and saved states, then filesharing of these books would be considered legal? Wow... you have one side of the coin where they are allowed to put as much protection to stop you from your fair use rights, but theres nothing legal stoping you from violating that protection?

I'm studying in Canada, but a Canadian degree allows you to practice in New York and California, which are the only two states I'm currently considering. If I intend to expand, it's a matter of additional courses.

In terms, computer copyright law does cover electronic documents, it just doesn't allow you any additional rights for them. So you only gain the rights the publisher gives you. If a publisher gives you a document that can only be viewed in a 4 pixel by 4 pixel window, that's all you get. It is a very corporate law.

 

[Creamsteak]

Very cool. Thank you muchly for the info.

 

[PJ-Mason]

From the looks of it, compared to normal pdfs, DRM does nothing except annoy legitimate consumers and provide false comfort for producers. The only actual benefit I see is that it discourages casual copying and sharing among friends, but this could be discouraged just as easily by having the digital store having a clear reminder policy of what is fair use. Heck, if we consider that most gaming groups will have a PHB for each player, but that each other book is just owned by the DM and shared, really, DRM is less useful than both pdfs and normal books.

What's the appeal, if someone could remind me, please?

You already answered your own question. "False Comfort". At least for some. Others don't know anything about DRM (other than it sounds good on the very surface) and just went along with the pack (in the case of the WW's umbrella companies like Necromancer Games, etc) in order to get thier products out to print-challenged customers.
One or two others, like Monte Cook, are on a mission to get all publishers in the PDF business and seem to have taken a "damn the torpedoes!" route to getting it done. He wants consumers to look at the pig picture:

"Lets get all of the game publishers into the pdf business, by any means necesary, then we'll sort out the little problems."

Whether this works out or ends as a big flop remains to be seen. It could backfire and we could end up with LESS print-cum-pdf publishers than we have now because of this big hoo-hah over DRM. Its risky if you ask me...which i noticed no one did!!!