The executive director of the Author’s Guild apparently objects to a feature of Amazon’s new Kindle 2 that would permit the vision impaired to hear the book’s text read in a computer generated voice. The Wall Street Journal quoted Paul Aiken yesterday as saying “They don’t have the right to read a book out loud. That’s an audio right, which is derivative under copyright law.”
Does Aiken have a legitimate gripe? I say it depends on the technology. And the fact that there could be a difference based merely on a technological setup underscores how digital technology has sent some aspects of copyright fumbling towards absurdity.
Granted, one of the exclusive rights that a copyright owner has under the Copyright Act is the right to prepare derivative works. The Copyright Act defines a derivative work as a “work based upon one or more preexisting works, such as a . . . sound recording . . . in which a work may be recast, transformed, or adapted.” But is the sound being read aloud by the Kindle 2 truly a “work” that is protected by copyright? If it’s not a work to begin with, it can’t be a derivative work.
Copyright protection only attaches to works of authorship that are fixed in a tangible medium of expression. For a work to be “fixed,” it has to be embodied for more than a mere transitory duration.
Here’s where the Kindle 2’s technology could determine whether a copyrightable derivative work comes into existence. I’ve searched for some technical specifications on the Kindle 2 but haven’t found anything on this point (maybe someone in the comments can help) — if the text-to-speech functionality creates an entire file that is saved and played back, it looks more like a fixed, copyrightable work has come into existence. On the other hand, if the device creates the audio data on the fly, so to speak, and releases it into some sort of buffer that is continually overwritten, it looks less likely a copyrightable work has been created.
We can look to the Second Circuit’s Cablevision decision from last summer for guidance. (The real name and full cite to that case is Cartoon Network v. CSC Holdings, 536 F.3d 121 (2nd Cir. 2008)). In Cablevision, the court held that a buffer comprising just one second of an audiovisual work at a time did not embody the work for more than a mere transitory duration.
So do you see how this could relate to the Kindle 2? If just a little part of the underlying textual work is being converted to audio at a time, there is nothing derivative being embodied for more than a mere transitory duration. Though creating audio, it would seem not to implicate the “audio right” that Aiken of the Author’s Guild mentions.
February 11, 2009
Cablevision also contains the "who's the infringer" discussion. Assuming, for argument sake, there is fixation (reaching back to the RAM cases), while the Kindle 2 enables the conversion of text based information to audio information, perhaps Amazon would be able to escape the direct infringement analysis the in the same way Cablevision did, by making the user the purported direct infringer.
February 11, 2009
Excellent point Jishnu. Cases a la Netcom require a volitional act on the part of a direct infringer. So maybe the best the Author's Guild would have is a claim of indirect infringement. But the Kindle seems a lot like a VCR — thus protected by Sony — inasmuch as it is capable of substantial noninfringing use. And I just don't foresee any kind of Grokster inducement, given that Amazon will most likely properly market the device (i.e., will not market it with the object it be used to infringe).
February 12, 2009
Even if there were some "fixation," I doubt that technically, any text-to-speech engine samples more than a sentence at a time (maybe based on word count). In that case, the transitory copy of the work that is created is not going to make up any significant portion of the book at any particular point in time.
There may also be a public performance right implicated, but I doubt that the most common use (e.g. hooked up to a car stereo, listened to through headphones, etc.) would qualify.
February 15, 2009
There is already an exception to the copyright owner's bundle of rights. Section 110 of the 1976 Copyright Act exempts performances of non-literary works that are transcribed in such a way as to help the blind or death. There are, however, some limitations on this exception as it may only be applied in certain situations. But, the point is that Paul Aiken was wrong when he said that blind people do not have the rights to read.
February 18, 2009
This discussion seems to relate to whether the consumer has infringed copyright. Publishers have a distinct problem. If the author has licensed them ebook rights and they go ahead and sell an ebook but the consumer converts it into an audio book, where does the publisher stand? On the one hand a publisher can never control whether the consumer uses their products in a way that is an infringement of copyright. On the other hand, if it becomes evident that the publisher is clocking up sales from people who are using their files in an audio way rather than an optical way, then aren't the exploiting audio rights?
February 18, 2009
Hmmmm. . .
17 USC § 101 Definitions:
“Audiovisual works” are works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment, together with accompanying sounds, if any, regardless of the nature of the material objects, such as films or tapes, in which the works are embodied.
17 USC § 106. Exclusive rights in copyrighted works:
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
February 18, 2009
My immediate thought is that the Kindle 2 no more infringes by it's text-to-speech than a person reading a book aloud does. It might, depending on circumstances, constitute a public performance, but that's it. If the reading isn't public, then the authors and publishers shouldn't have a claim.
Yes, this means they won't be able to sell 2 copies of the work. Nowhere in copyright law does it guarantee creators the right to sell any particular number of copies of their work.
February 18, 2009
@hugo – You identify an interesting issue — whether publishers find themselves liable for distributing a work knowing it will be infringed. That's an interesting twist on contributory liability. Grokster and Sony addressed the question of secondary liablity arising from the distribution of *devices*. Not sure I know of any cases dealing with secondary liability arising from the authorized distribution of a *work*. Anyone else know of such a case?
February 19, 2009
What about all the people that volunteer to read books on to tape so those tapes would be available to the blind? Are they all now infringing in that volunteer activity?
A person reading a book, providing different voices and inflection is an interpretation of the text that goes beyond the mere conversion of text to sound, and is a different work than the original text. I've not heard the kindle reading a book, but if it is anything like the current text to voice that is common on today's computers, I can't believe that it intelligently converts the text in the same way a person does, changing voices and so on.
February 20, 2009
Thanks, Evan, for picking up my point. Quite apart from any issue of contributory liability, publishers must avoid exceeding the rights they have been granted. Sometimes ebook licences specify the kind of devices on which they can be read. The distribution process however probably doesn't allow for publishers to control whether it will end up on a Kindle 2. As ever, the precise wording of the licence will be key.
February 26, 2009
Hugo, to pick up your point on ebook licenses….does Amazon create and distribute its Kindle edition via license? If not, why not? I know that the Kindle edition bears the Publisher's imprint, so it is a publisher's edition…but the process by which Amazon takes the Publisher's original file, adapts it to become playable only on kindles…and now adds a text-to-speech capability…seems to me to require a license. What's your understanding?