Amazon's Kindle e-book reader was introduced to the world back in November 2007. Most people would be forgiven, however, for thinking that the device's legal problems only started with the 2.0 version of the device, which has gotten Amazon in hot water with the Authors Guild, and prompted the company to lash out at those who attempted to put unsanctioned content onto its hardware.

But, as it turns out, Amazon's biggest legal worries may have begun in the very month that the device was first introduced. That's when a patent that anticipates most of the Kindle's major features was granted to someone else. That someone else, Discovery Communications, has now filed suit against Amazon for patent infringement.

Discovering e-books

Discovery Communications is probably most notable for its premium TV channels, including the eponymous Discovery Channel. But, according to the announcement of the suit, "Discovery Communications and [its founder] John S. Hendricks were significant players in the development of digital content and delivery services in the 1990s." That interest in content delivery seems to have prompted the company to consider getting into the e-book business as early as 1999, when the patent was first filed.

A look through the patent, which is called "Electronic book security and copyright protection system," reveals that Hendricks and his colleagues were well ahead of the game on a variety of levels. The majority of the patent's claims involve encrypting and delivering e-book contents, focusing on the storage of keys and secure communications—much of it seems to anticipate the DRM schemes that would be popularized shortly thereafter with digital music distribution.

But Discovery wasn't making bets on any specific encryption or distribution model. The patent contains over 170 clauses, most of them citing variations in which the encryption takes place at different points in the distribution. And, although the patent suggests one distribution model that fits well with Discovery's primary business (sending the books down an unused portion of a TV signal), its authors also made sure to cover their bases by including clauses that patented book distribution over the Internet and—bad news for Amazon here—on "a wireless telephone network."

The patent's abstract describes how "a portable book-shaped viewer is used for secure viewing of the text" and how "a billing system performs the transaction, management, authorization, collection, and payments." That last bit appears to be describing Amazon's role as gatekeeper for the transactions involved in putting content on the Kindle.

The similarities continue. The portable device "receives a created, transmitted list of titles of available electronic books" and allows the user to select "a title from the transmitted list of titles of available electronic books." From there, the system handles encryption, transmission, and decryption with secure keys for each transaction. Illustrations of the intended e-book reader included with the patent application seem to look like a keyboardless-Kindle (or a Sony Reader).

Do similarities equal infringement?

The patent covers most of the significant aspects of the Kindle and its e-book content management system. Any problems are likely to arise from the long and fairly specific list of approaches to encrypting and validating the e-books, as it's possible that Amazon's DRM scheme is different enough not to be covered.

Discovery isn't looking to keep the Kindle from being sold, but it is intent on making the device a significantly more expensive proposition for Amazon. The suit seeks damages "adequate to compensate Discovery for Amazon's infringement" and asks to have them trebled due to willful and exceptional actions on Amazon's part. In addition, in lieu of blocking sale of the Kindle, the company wants the court to impose a royalty agreement.

We talked with Raymond Zenkich, a partner at IP consulting firm Red Chalk Group, about some of the intellectual property issues involved. He found that Discovery has a diverse portfolio of 32 patents, generally focused on digital content delivery. Nine of these cover e-books. Those nine date from anywhere between 1994 and 2008. "This shows that they take this area seriously," Zenkich said, "they are seeking to protect their innovations." (He also viewed Discovery's long history of patents in this area as an indication that the timing—the patent being granted at the same time as the Kindle was released—was coincidental.) With nine patents on e-books to choose from, Zenkich suggested that Discovery "may have learned that the Kindle was infringing on some aspect of the security and copyright protection system disclosed in the patent."

After a relatively smooth experience with the first model, Amazon seems to have stumbled into the legal undergrowth with Kindle 2. Since the introduction of the revised hardware, Amazon has annoyed both its users and content suppliers even as an intellectual property sword has been hanging over its metaphorical head.