B&N Claims It Must DRM Public Domain Books To Protect The Copyright On Them

from the say-what-now? dept

Thu, Jul 30th 2009 10:38am — Mike Masnick

Now, it's no surprise that plenty of people don't quite "get" the public domain or why it's important (though, if you are interested, you should read James Boyle's excellent book on the subject, which you can also order -- signed -- as a part of the Techdirt Book Club). And we've seen more than a few instances where people falsely claim copyright on public domain material. However, none of that really explains Barnes & Noble's bizarre and contradictory response to someone's question about why public domain ebooks were locked up with DRM (thanks Mark for sending this in). B&N is apparently offering a promotion for "free" ebooks, but it turns out that all of them are in the public domain (meaning most are already available for free online). But, oddly, these books were locked up by DRM, and someone decided to ask why. The original question goes a bit too far in claiming that the DRM "infringes" on the "right to print the works" (there's no such right, and B&N has no requirement to allow you to print), but that's no excuse for the way B&N "explains" why the public domain books its giving away "free" are protected by DRM:

We selected public domain titles as our free eBooks because these books are traditionally among our customers' favorite works of literature.... Also, for copyright protection purposes, these files are encrypted and cannot be converted or printed.

So, they recognize that the works are in the public domain... but they encrypt them with DRM to protect the copyright that doesn't exist on those works. That's convincing.

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Filed Under: books, copyfraud, copyright, drm, ebooks, public domain

54 Comments

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TheStupidOne, 30 Jul 2009 @ 10:59am

Self Interest
They want the free books to come with their DRM so that you'll use their reader and buy ebooks from them. DUH

But they can't say that ... it'll make them look evil
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ChurchHatesTucker (profile), 30 Jul 2009 @ 10:59am

Makes sense, from their POV
B&N make a ton of money reselling popular public domain titles (Shakespeare, Austen, etc.) This is just their take on the digital version of that.

I've long said that falsely claiming copyright (and DRMing a PD work would qualify, in my estimation) should be at least as criminal as infringing on an actual copyright holder. But that wouldn't benefit the companies that write the laws, so fat chance for that.
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Anonymous Coward, 30 Jul 2009 @ 11:05am

B&N is like a library you can read all their books without paying. Minus the taking it home part.
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BullJustin (profile), 30 Jul 2009 @ 11:13am

transformative use?
Is there any argument for transformative use which would put these works under copyright protection? Since a digital versions of common things get patent protection, right or (nearly always) wrong, might B&N's legal department see an ebook as qualifying for copyright protection? After all, THEY are the publisher and the free giveaway is limited. That and like TheStupidOne said, this is reallyt just a ploy to promote use of their reading software and eventually their e-reader.
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aguywhoneedstenbucks (profile), 30 Jul 2009 @ 11:19am

There is a prostitute analogy here somewhere, but for the life of me I can't find it.
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Scote, 30 Jul 2009 @ 11:20am

I love how BN claims they include public domain works "because these books are traditionally among our customers' favorite works of literature" and not because the out of copyright works cost BN **nothing** to include.
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scarr (profile), 30 Jul 2009 @ 11:20am

I suspect this isn't their legal department. It's probably marketing cobbling together their pre-written responses, not realizing that they don't make sense together.
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Anonymous Coward, 30 Jul 2009 @ 11:46am

If you don't like it then just download them some where else. Wow. Consumers have power? Never.
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Matt, 30 Jul 2009 @ 11:49am

re: transformative use?
ding ding ding!!! We have a winner!

B&N are most likely claiming copyright over the typography and any other formatting to use the Public Domain works with their eReader software!

It's no different than a publisher claiming copyright on the arrangement of a Mozart concerto.

It's mean spirited, counterproductive but most likely legal.
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Jerry in Detroit, 30 Jul 2009 @ 11:50am

This reminds me of the famous quote from the Tet Offensive when a commander made the wonderful observation that "We had to destroy the city to save it". To quote Pogo, "We have met the enemy and he is us".
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sehlat (profile), 30 Jul 2009 @ 11:51am

They're DRMing them to trap the stupid.
Darwinism in action.
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ChasW, 30 Jul 2009 @ 11:53am

@B&N

You keep saying that word. I do not think it means what you think it means.
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Anonymous Coward, 30 Jul 2009 @ 11:54am

Re: transformative use?
might B&N's legal department see an ebook as qualifying for copyright protection?

That's like saying you get copyright over a PD work be virtue of reprinting it, which is not the case. You can sell what you print, but you don't reclaim copyright on it.

In truth, it's probably part ploy to get people to use their reader and part looking forward and wanting to sell these very same ebooks at some time -- which is a bit nearsighted since, as mentioned, many are already available for free elsewhere.
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Anonymous Coward, 30 Jul 2009 @ 11:56am

Re: Makes sense, from their POV
I've long said that falsely claiming copyright (and DRMing a PD work would qualify, in my estimation) should be at least as criminal as infringing on an actual copyright holder.

Best I remember from reading through the copyright laws, it is indeed a crime to falsely claim copyright over a work. Don't expect to see a corporatist gov't enforcing it against a corporation like B&N though, that would be like a cop giving himself a ticket, i.e. not likely to happen.
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Anonymous Coward, 30 Jul 2009 @ 11:57am

The reason it works is because most of B&N's non public domain works.. at least in the store.. come with very lengthy forwards. B&N can claim copyright on the added material which explains the background and circumstances of the book, without actually claiming to own copyright on the book itself.

I'd assume something similar here. They aren't DRM'n for the public domain work, they are DRM'n all the rest they package with it. Kinda nifty that it sidesteps isn't it?
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Howard Plumley, 30 Jul 2009 @ 11:57am

Copyrighting the PUBLIC Domain
A - Greed is Stupid!
B - Stupid is as Stupid does!
C - Disney has made millions from the 'PUBLIC' Domain, so it must be okay.
D - We don't even have to add any value, we will just claim, "We touched it. therfore we own it!"
E - Proof positive that Greed is Stupid.

Since 'DRM' is Sony's favorite of breaking things, I hope this was spill over of their stupidity. If not, I will stop shopping there. (Every Saturday for years on end, and nearly every Saturday was $25+)
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Trails, 30 Jul 2009 @ 12:03pm

Re: Makes sense, from their POV
"B&N make a ton of money reselling popular public domain titles (Shakespeare, Austen, etc.) "

There's nothing wrong with that though. If I stand on the sidewalk and say "pay me $5 and you can breath air", it doesn't prevent you from breathing air for free. hould you decide to buy my air, so be it, but it doesn't impinge free breathing.

I agree that DRM an ebook is questionable at best, and their explanation is non-sensical. However, it's hard to see this as especially evil, since you can just go and get non-drm'ed copy for free.

I suspect this is promoting their ebooks that they sell. The problem with promoting non PD, DRM'ed ebooks with DMR-less ebooks is that it creates a false expectation, that the user will be able to do such and such with ebooks. Then the customers buys one, and lo and behold, all that shit you could do with the free one? blocked on the one you bought.

So, DRM'ing this is something of a smart UE move in that giving away drm-less ebooks sets up B&N for a negative user experience when they try to buy.
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Anonymous Coward, 30 Jul 2009 @ 12:07pm

Re:
this seems to be more of an issue of B&N trying to slide in and own a bunch of PD works.

Given that lovely Beatles article a little while back all you have to do to own something is to pretend to own it for a while then all the sudden you own all the rights to it cause no one told you otherwise.
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Crosbie Fitch (profile), 30 Jul 2009 @ 12:07pm

Right to print
Naturally, everyone has the right to print as part of their natural right to liberty.

It is the 'right to print copies' that was derogated in the 18th century from the individual's natural 'right to print', in order to create the mercantile privilege of copyright, a reproduction monopoly for the benefit of printers.

So, yes Mike, there is such a thing as the right to print. It is the restoration of this right that is pursued by copyright abolitionists.

Individuals are of course printing what the heck they like anyway (via their inkjet printers), but the abolitionists would see them exempt from prosecution (for ignoring a printer's monopoly).
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Bubba Gump (profile), 30 Jul 2009 @ 12:32pm

Re:
That is so true, but B&N is even better than a library.
I can sip some coffee while reading (coffee is usually a no-no in libraries). Also, I'm able to read a BRAND NEW copy each time!
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David Loschiavo, 30 Jul 2009 @ 12:35pm

DMCA violation?
I threw together a decent article on the issue of whether it's a violation of the DMCA to circumvent DRM on public domain ebooks. The general answer is no, but there are foreseeable cases when it can be a violation.

And yes, I am an IP lawyer.
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MBraedley (profile), 30 Jul 2009 @ 12:40pm

My head just exploded
When I first read the title, I had a similar reaction to when I first heard the following that Lewis Black quoted from a random woman:
"If it weren't for my horse, I wouldn't have spent that year in college."
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Simon (profile), 30 Jul 2009 @ 12:56pm

Circumvention?
Doesn't the DMCA ban the circumvention of DRM to access work that is under copyright?

Could someone legally research and publish circumvention techniques for these titles and be immune from the DMCA due to the fact that the underlaying works are in the Public Domain?
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Ariel (profile), 30 Jul 2009 @ 12:58pm

It's worse than that...
If you browse around on their store a bit, you'll also find them charging $5 for public domain works... Why?

Amazon's Kindle store has all the public domain stuff too, and some you pay for (usually the paid ones have better formatting, chapter tags, etc), but all can be had for $0 or $0.01.

Also, B&N are artificially inflating the number of titles they have... 700,000? 500,000 are public domain, available through Google and Gutenberg.

The Kindle store has far and away the greater number of "modern" books you might actually be looking for (and aren't free somewhere else).

Just say "NO" to B&N's ebook store.
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Simon (profile), 30 Jul 2009 @ 12:58pm

Re: Circumvention?
I see David Loschiavo beat me to this thought. :-)

http://techdirt.com/article.php?sid=20090730/0257115712#c312
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NullOp, 30 Jul 2009 @ 12:59pm

What?
DRM on PD works. Sounds like something the KGB would have come up with. Oh, that's right, we're in the midst of reinventing the Socialist Society where everything is free except what is not.

Motto: Limited copyrights & patents make for a truly free society
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Anonymous Coward, 30 Jul 2009 @ 1:44pm

Re: Re: Makes sense, from their POV
There's nothing wrong with that though. If I stand on the sidewalk and say "pay me $5 and you can breath air", it doesn't prevent you from breathing air for free. hould you decide to buy my air, so be it, but it doesn't impinge free breathing.

Ah, but if you stand there and tell people that the gov't has granted you an exclusive monopoly on air that they must pay you in order to breathe under penalty of law, then that's fraud.
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Anonymous Coward, 30 Jul 2009 @ 1:49pm

It might make sense to them to add drm so only people who have their e-reader would bother to download the work (assuming anyone does).
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interval, 30 Jul 2009 @ 1:53pm

Re: Makes sense, from their POV
@ChurchHatesTucker: "...the companies that write the laws..."

Companies can't write laws. Ha ha ha h aha ha aha hahahah...
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interval, 30 Jul 2009 @ 1:56pm

Re:
@Jerry in Detroit: "...reminds me of the famous quote from the Tet Offensive..."

Yep, that'd be the battle for Hue, and yes indeed, we had to copyright these woks to save them.
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Anonymous Coward, 30 Jul 2009 @ 1:59pm

Is it possible that how their on-line book system is set up is a limiting factor that causes this result, and not because they are somehow claiming copyright in a work within the public domain?

BTW, as noted above, virtually all of the old "Masters" can be had on the web via sites like Project Guttenberg (sp?).
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interval, 30 Jul 2009 @ 2:00pm

Re:
Makes sense to me to get my books from elsewhere (and I do.) I'll live without the formatting and any other added "values" B&N sees fit to charge me for. Kinda rendering any reason they have for drm'ing the work useless.
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interval, 30 Jul 2009 @ 2:03pm

Re:
On point, true and correct, in as much as B&N doesn't have a copyright on the phrase "cobbling together their pre-written responses", otherwise I
m going to have to charge you a copyright & usage fee.
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Anonymous Coward, 30 Jul 2009 @ 2:38pm

Re: Re: Makes sense, from their POV
Yes they do. Then they give them to their favorite congresspeople wrapped in large rolls of cash so they try to pass them.
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Mike Masnick (profile), 30 Jul 2009 @ 4:18pm

Re:
Is it possible that how their on-line book system is set up is a limiting factor that causes this result, and not because they are somehow claiming copyright in a work within the public domain?

Yes, it's quite likely in fact. But then they shouldn't tell people that the reason they DRM PD works is to protect copyright.
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Anonymous Coward, 30 Jul 2009 @ 4:55pm

Can someone please show me where the laws are that require public domain material to be distributed in easily copied formats? Can you also point out the law that says you cannot DRM publi domain works?

Thanks
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Mike Masnick (profile), 30 Jul 2009 @ 5:15pm

Re:
Can someone please show me where the laws are that require public domain material to be distributed in easily copied formats? Can you also point out the law that says you cannot DRM publi domain works?

There is no such law, nor did anyone imply otherwise. In fact, we stated quite clearly in the post that the initial questioner was wrong in assuming that it had to be copyable.

But what this post is about is the response from BN falsely claiming that public domain works need to be DRM'd for copyright reasons.
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Fixed that for ya, 30 Jul 2009 @ 5:38pm

Re: Re: Makes sense, from their POV
The companies that write the laws via their PAC proxies
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CleverName, 30 Jul 2009 @ 5:40pm

Re: re: transformative use?
"It's no different"

Apples and Oranges
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Anonymous Coward, 30 Jul 2009 @ 5:41pm

Re: Re:
Part of the problem is you are missing some stuff in the middle:

"We selected public domain titles as our free eBooks because these books are traditionally among our customers' favorite works of literature.... Also, for copyright protection purposes, these files are encrypted and cannot be converted or printed. " what is in the "...." section?

I don't see them claiming false copyright, rather that all files on their system are encrypted.
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Anonymous Coward, 30 Jul 2009 @ 5:44pm

Re: Re:
Ding, here's the better quote:

"Unfortunately, eBooks purchased directly from Fictionwise or eReader cannot be merged into your Barnes & Noble eBooks Library.

Also, for copyright protection purposes, these files are encrypted and cannot be converted or printed."

The encryption references to anything purchased from Fictionwise or eReader.

Sometimes reading the whole quote makes all the difference.
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CleverName, 30 Jul 2009 @ 5:44pm

Re: It's worse than that...
Just say no to ebooks
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Doctor Strange, 30 Jul 2009 @ 5:55pm

The ... in the quotation leaves out several lines of their response. Although the entire response is not well-written, it is not clear that "these files" in "these files are encrypted" refers to the public domain books. Rather, the section of the response you left out refers to other files...namely, "free samples of every commercial title available on our website" as well as "eBooks purchased directly from Fictionwise or eReader."

It's also possible that whoever wrote the response just made a mistake, or doesn't fully understand copyrights and the public domain.

I appreciate that it is much more fun to just berate people and companies without giving them the benefit of the doubt, though. I mean, how would you write a compelling story with a headline like "low-level B&N customer service employee writes unclear email; possibly misunderstands copyright law?"
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Anonymous Coward, 30 Jul 2009 @ 6:15pm

Re:
Problem is, that doesn't make for a good headline, and certainly doesn't create the same outrage as misunderstanding the email does.
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Andrew D. Todd, 30 Jul 2009 @ 7:35pm

Look At the Master Catalog.
There's a man by the name of John Mark Ockerbloom, at the University of Pennsylvania's Van Pelt Library. He runs a master catalog of books available on the internet. It incorporates the Gutenberg project, but it has a lot of other things as well.

http://onlinebooks.library.upenn.edu/
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Nasch, 31 Jul 2009 @ 11:23am

Re: Re: Makes sense, from their POV
Companies can't write laws. Ha ha ha h aha ha aha hahahah...

Is this sarcasm or naivety? I can't quite tell.
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Nasch, 31 Jul 2009 @ 11:27am

Re: What?
Oh, that's right, we're in the midst of reinventing the Socialist Society where everything is free except what is not.

Isn't that true everywhere?
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Anonymous Coward, 31 Jul 2009 @ 2:38pm

fuck them
don't buy shit from them
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Anonymous Coward, 31 Jul 2009 @ 2:54pm

Re: Re: Re:
Sometimes reading the whole quote makes all the difference.

But this isn't one of them. They're saying that the files are encrypted for copyright purposes which is claiming copyright on them.
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Anonymous Coward, 31 Jul 2009 @ 3:36pm

Re:
The ... in the quotation leaves out several lines of their response. Although the entire response is not well-written, it is not clear that "these files" in "these files are encrypted" refers to the public domain books.

Uh, yes it clearly is because it was made in response to a question about public domain works. Trying to claim that it was answering a different, unasked question doesn't cut it. If you do that under oath it's called perjury, outside of that it's just plain lying.

It's also possible that whoever wrote the response just made a mistake...

Hey, anything's possible I guess, but in the absence of any evidence to that I'd say you're just making stuff up now.

...or doesn't fully understand copyrights and the public domain.

If they don't know then they shouldn't be making stuff up, now should they? And if that *is* the case, then B&N should issue a public statement that the original statement came from a rogue employee acting against company policy who has now been fired for gross misconduct. That's hasn't happened, has it?

I appreciate that it is much more fun to just berate people and companies without giving them the benefit of the doubt, though. I mean, how would you write a compelling story with a headline like "low-level B&N customer service employee writes unclear email; possibly misunderstands copyright law?"

Because that headline would have been speculative and making stuff up (something you seem to like doing) without any evidence to support it. If TD had also wanted to make stuff up or "just berate people and companies" as you put it, they could written something like "Liars at B&N hire other liars to spread untruths to customers whom they believe are too stupid to know any better." But that would have been speculative also. No, I believe their fact based headline was more appropriate.
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Anonymous Coward, 31 Jul 2009 @ 3:52pm

Re: Look At the Master Catalog.
"There's a man by the name of John Mark Ockerbloom, at the University of Pennsylvania's Van Pelt Library. He runs a master catalog of books available on the internet."

When I read that I wondered how in the world they managed to do that, so I went to their site to find out. Yeah, you suckered me. It turns out they don't. They don't even claim to. They do have a list books that are available online, but they don't claim that it is a "master catalog" of what's available on the Internet, books or otherwise. So did somebody else tell you that or did you make it up on your own?
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Trails, 11 Aug 2009 @ 7:05pm

Re: Re: Re: Makes sense, from their POV
Whoosh.
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Bill Roach, 20 May 2012 @ 4:20am

Bully Shitzu (a tough little doggy)
This is just one more example of run away corporate conquest. They're clinging to the "it's a derivative work just because we copied it verbatum with our computers - so it's ours" arguement. This action is what defines the difference between healthy capitolism - and a criminal attempt to sieze the people's property by virtue of aggressive annexation. These mulligans would try to make you pay for the air that you breath - or slap a patent or trademark on the color black if they thought that they could get away with it. Makes me wanna hurl.
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Bill Roach, 20 May 2012 @ 4:20am

Bully Shitzu (a tough little doggy)
This is just one more example of run away corporate conquest. They're clinging to the "it's a derivative work just because we copied it verbatum with our computers - so it's ours" arguement. This action is what defines the difference between healthy capitolism - and a criminal attempt to sieze the people's property by virtue of aggressive annexation. These mulligans would try to make you pay for the air that you breath - or slap a patent or trademark on the color black if they thought that they could get away with it. Makes me wanna hurl.
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