diglib: the future of ebooks

[JQ Johnson <jqj@darkwing.uoregon.edu>]

There's been a quite interesting thread on cni-copyright about the future 
of copyright.  Basic argument in that thread has been that the napster case 
seems to show that current copyright law is beleaguered to the point where 
it needs radical reform (I doubt that such reform is in fact likely).  I'm 
attaching a posting that does a good job of putting ebooks into the context 
of the current napster controversy:

Date: Tue, 13 Mar 2001 12:04:36 -0500
From: John Mark Ockerbloom <ockerblo@pobox.upenn.edu>
To: cni-copyright@cni.org
Subject: Re: Why the Music Industry 'should?' Settle with Napster
Message-ID: <3AAE5324.BD6BB62F@pobox.upenn.edu>

Lance Purple wrote [proposing a global public electronic library with
mechanical licenses that would compensate authors for access along the
ASCAP model (JQ)]:
> Look, this is a somewhat radical idea, and there would be many details to
> be worked out.  But I don't see any show stoppers, anything fundamentally
> impossible.  The only other two options that I can see are
>
>    (A) give in to anarcho-piracy, or
>    (B) put Big Brother inside all networked computing devices on Earth.
>
> Are these any less radical?

Actually, if nothing is done, a combination of these two options is likely
to result, similar to the ongoing "war on drugs" where increasingly 
draconian
measures infringe on civil liberties, but fail to stop people from getting
whatever they want "underground" if they're determined enough.  Generally,
life is made more miserable for everyone.

But I don't think these two options, or a socialized distribution 
mechanism, are
our only options.  Part of the problem we're seeing now is that
publishers are focusing their efforts in the wrong place: they're
spending too much effort trying to stop piracy and not enough effort
trying to build a market.

Ultimately, gaining customers is more important than preventing piracy.
They are related to some extent-- unchecked
piracy can easily erode one's customer base, after all-- but I think most
people in the business would agree that they'd rather have, say, 1 million
ebook sales with a 20% piracy rate, than 50,000 ebook sales with less
than 0.1% piracy rate.  (I gather than 50,000 is the number of dedicated
"ebook" devices sold last year.)

Most software manufacturers found in the 1980s that trying to impose
strong copy protection on software wasn't worth it; it didn't stop the
dedicated pirates from getting their "cracked" warez, and it inconvenienced
the paying customers too much.  So it was better, in most markets anyway--
there are still exceptions at the high end-- to sell easily copyable 
versions,
write off some piracy loss, and make up for it in sales.  They made
a more attractive market, and got a lot of customers.

I think the Napster experience is causing many content providers to "learn"
the wrong lessons.  "Look at this," they say, "50 million people
downloading copyrighted songs.  Clearly everyone's a pirate, so we have to
do everything we can to prevent anyone from being able to pirate things."
But actually I think what we saw with Napster was a failure of the market.
People's respect for copyright (as with many other considerations) is
highly situational.  Most people, I would wager, are by and large willing
to pay for content they can own, but if it's too inconvenient, and
more convenient alternatives exist in the "unlicensed" world, they'll use
them.  In the predigital world, the concepts of fair use and of
compulsory licensing serve in part as a way of marking off a space where
people are free to make certain "convenient" uses of creative content on
their own initiative, while still keeping a large market viable that
people respect, by and large.  After all, once one buys content, one "owns"
it, and can use it in a much wider variety of ways than "fair use"
alone allows.

In the case of Napster, there was a clear demand in the market for
a service where people could easily retrieve any song they wanted--
maybe to preview a CD they were thinking of buying, maybe to just
own a copy of that one favorite song, maybe to get something obscure
enough that it wasn't available in the neighborhood record store,
or was out of print entirely.  Some of these uses, like previewing a
CD, are potential precursors to a sale.  Others, like getting an obscure
song to complete one's collection, are potential sales themselves.  But
the existing market (off-line or on-line) wasn't providing a good
channel for these sales.  (Which is not to say that no one was
trying, but that the services that existed tended to be have less
convenience, higher price, and lesser selection than what listeners
really wanted.)  Then along came Napster.  This filled all these
niches extremely well, and so it's no surprise that it caught on as
well as it did.  It filled a definite demand, and one that the market
had not been filling, and some of its uses, as described above, did not
displace existing types of sales (though they might cannibalize possible
future types of sales), so many people were willing to put their
copyright scruples aside to use it.

(Of course, once Napster arose and got big, it made things worse
for the market, since any legitimate vendor now had to compete against
a free service.  But if the music biz had already had an alternative
to Napster that met the needs of the market before Napster came out,
I don't think there would be such a problem now.  The proposed free
"replacements" for Napster, like Gnutella and the like, are in some ways
less convenient and more technically vulnerable than Napster was, but not
in completely unsurmountable ways.  This means that what happens next
is largely going to depend on whether the music industry can provide a
good enough alternative to them fast enough that the bulk of their
customer pool goes to them instead of Gnutella et al.)

Now let's consider another potential market, that of electronic books.
This market is still fairly small, and the existing print book market
is still viable and much bigger.  I gather that many books have been
pirated (I don't get alt.binaries.e-book but I'm told that hundreds of
copyrighted titles often get posted there in a short time period.) 
Moreover,
because books are text-based there's *nothing* the publishing industry
can do to make it *impossible* to pirate.  (A lot of the pirates rip off
print books, not electronic books, and even if one goes to a completely
"secure" reader device, it's still possible to OCR or retype the content.
Retyping may seem like a lot of work, but it's still cheap to do in
many developing countries-- and is done, I'm told, for bootleg "bestsellers"
in some parts of the world, and only one person needs to do it to make
an infinitely distributable copy.)

However, at least at present, piracy has *not*
yet taken over the market in electronic titles.  Ask someone
on a music newsgroup where to get free online music, and you'll usually
be pointed to Napster.  Ask someone on a books newsgroup where to
get free online books, and you'll usually be pointed to Gutenberg or
Bartleby, or to my own On-Line Books Page or the IPL (all of whom
screen out copyright infringements).  And print books still sell well.
There are several reasons why piracy has not yet taken over this
market.  One is that readers by and large still find the print form
of books more convenient than the electronic form.  Another is that
there's no convenient "one-stop-shop" for pirated books, like there
has been for pirated music. There are convenient comprehensive
bookstores, and at present there's enough free content-- thanks in part
to the besieged public domain, thanks in part to people who make their
own copyrighted material available, and thanks in part to sites that provide
searchable and browsable indexes for convenient access, to keep many
seekers of free texts happy.

There's also copy and access control on most marketed "ebooks".  However,
I would argue that has a fairly small effect on the ability to get
pirated copies, since as I stated above there are ways to produce
pirated versions despite the copyright protection.  But, once there
gets to be a critical mass of people who want to read books in
electronic form, such copy protections may increase the *incentive*
to use pirated copies instead of "legitimate" copies.  Thus, it's
quite possible-- and likely, in my opinion-- for many of the access
and copy controls now being proposed to
actually make matters *worse* for publishers (as well as for readers).

Consider the things you can do with print books that you buy today.
You can take a quick look through them in the store to see whether
you want to buy them.  You can keep them on your bookshelf for decades,
and pull them down to read whenever you want to.  You can lend them to
a friend to read, resell them when you want to buy more books, write
annotations and bookmarks in them, photocopy pages out of them, and
keep a few of them open to various places in the text to consult them
when writing a paper.  All of these uses, some of them "unlicensed"
but all protected both by the law and by the design of print books,
enhance the desirability of *owning* the book, and hence increase
its market value.

Now consider an "ebook" that's locked up as many are at present.
You may not be able to
browse it at all, or only a small section which may or may not be
the one you're interested in, before buying it.  You can't keep it
indefinitely; indeed, because there's a key that links the book to the
device, you lose the book when the device breaks, gets lost, or becomes
obsolete.  (Or perhaps you can migrate it, but only as long as the seller
stays in business and is still interested in supporting the title,
and you're willing to pay whatever fee is required to get a fresh copy.)
Similarly, you can't lend it or resell it for someone else's
device.  It won't let you make a digital "photocopy" of particular pages,
or cut-and-paste several snippets from several books to keep them combined
for consultation, at least not easily.  And while some "ebooks" offer
some level of bookmarking and annotation features, because the actual
content is locked up as is required by the "trusted" system, you're
stuck with using the provided interface, rather than an annotation or
markup system that might be more natural and convenient to you.  Oh, and
it's quite possible-- and in some systems, required--
that this "trusted" system also transmits information
about what you're buying and reading back to the vendor, so you can't
even trust that you can keep your reading habits private any more.  In other
words, many of the benefits of owning a book in the print world
aren't there in this "secure" electronic world.  (For that matter, the 
seller
might deny that you can "own" the book at all, legally speaking-- you
just "license" it through a click-wrap license enforced via some
UCITA-like regime.)

The potential customer looks at this, and then looks at a
copy of the title which doesn't have all these restrictions and
privacy concerns.  It's not locked up, so it can be read anonymously, lent
or given to anyone you choose, cut-and-pasted as desired, migrated
to new formats and devices so that it can be kept indefinitely,
integrated with one's favorite annotation and bookmarking system
(whatever that is), and so on.  In other words, it has a lot
more of the benefits of ownership one has with print books.

Oh, it's also a pirated copy.
But, as with Napster, many readers faced with this choice would
overlook their copyright
scruples, if that's the only way to conveniently get such an electronic
copy.  (Actually, since there's still a healthy print market, most
customers can and do take a third choice-- just get a print copy.)  But
if enough people decide to go to bootleg electronic copies,
then a critical mass of "pirate" markets can open up, as with Napster and
successors, further worsening the problem.

Of course, such an open copy, or something like it,
could also be offered by publishers
themselves, at a reasonable price.  It'd be somewhat easier to
produce the *first* pirated copy, but it would be a lot
more attractive to customers, I would think.  Hence, it would increase
the potential market for the copy, and also make it less likely
that the customer would *want* to get a pirated edition instead.
The end result, lots of sales of reader-friendly copies, could make
everyone happy.  As long as you make it easy and attractive
for people to stay "honest", the pirate market can stay limited to
the "hard core" and coexist with a viable, and large, legitimate market.

That's one road the publishing industry could take.  The other road is
to keep trying to make the locks stronger and stricter, and make sure
not to release anything to the market unless the locks are strict
enough and the legal and architectural infrastructure draconian
enough, to make publishers feel secure.  The result of this other
way would be what I described at the top of the message: anarcho-piracy
*and* Big Brother.  (And a disappointing "legitimate" market.)
Unfortunately, it appears that the publishing
industry is largely heading down the second road, but it's not too late
for some of the more enlightened folks to try to change direction.

John Mark Ockerbloom
Editor, The On-Line Books Page
http://digital.library.upenn.edu/books/

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