Wednesday, December 10, 2014

Abbey House case deals with "contributory infringement" by encouraging removal of DRM, in complicated case embedded in "price fixing"

There is a very complicated case where an e-book seller Abbey House (once known as Books on Board) got into a dispute with Apple and several book publishers, including Simon and Shuster, claiming that “price fixing” effectively drove it out of business.  Antitrust ideas aside (you study that in US History), another controversy occurred with Abbey House provided consumers with directions as to how to remove DRM so that consumers could read the books even if the company went out of business.
The details are in a report in “Courthouse News” by William Dotinga, here

 The federal judge Denise Cote (New York) ruled that Abbey had not “induced infringement” or participated in “contributory infringement”.  Users were simply enable to use something they had paid for on another device.  The actual opinion is here. There has been plenty of litigation over the idea that a business whose model is to promote infringement (most often in a P2P context) might well be guilty of a contributory infringement tort – unless there are credible non-infringing uses for the business.  Then an interesting moral question is whether the non-infringing uses could support the business alone.  You could extend this kind of thinking into the “free content” debate. 

This whole problem is at least tangentially related to the controversy involving Amazon, Hachette, and many of its book authors. Keith Gessen reports (“The War of the Words”) this on page 162 of the December 2014 Vanity Fair, here
In the meantime, I wonder how many writers really make a living from just that (see Book reviews blog, Aug. 8, 2014).

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