The Kindle 2’s Correct Copyright Claims (and the Authors Guild’s Incorrect ones)

Amazon released the Kindle 2 this Monday and immediately, a copyright controversy erupted over the Kindle 2’s new text-to-speech feature.  Roy Blout Jr., the President of the Authors Guild, in a New York Times op-ed,  labeled the Kindle 2 as a “new way of not getting paid.”  He argues that this violates an ebook’s copyright since the Kindle 2 doesn’t have the audio rights.  I see two main issues in the Kindle 2 text-to-speech case: what copyright law says, and pragmatically, what the text-to-speech feature could mean for audiobooks.

First, the copyright objections.  Paul Aiken, Executive Director of the Authors Guild with Engadget:

“Well, the legal objections fall in a couple categories. One is the basic copyright objection which I know has been bandied about a lot online, and that objection comes in two parts. There’s the unauthorized reproduction of the work which is one claim under copyright law — for that there has to be fixation of the copy and there’s a legal question as to whether or not there’s adequate fixation in the Kindle. The second claim is that text-to-speech creates a derivative work, and under most theories of copyright law, there doesn’t have to be fixation for there to be a derivative work created.”

Mr. Aiken admits that the case for the first objection, that an unauthorized reproduction is being made, is shaky, because the Kindle 2 isn’t actually making an audio file of its reading, but appears to be doing this on the fly.  According to the US Copyright Act (via the EFF), in order for a work to be fixed, it has to be ”sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”  The amount of time the audio is in the Kindle 2’s RAM does not hold as fixed, according to a precedent by the Second Circuit Court of Appeals regarding DVRs.  It is also worth noting that a person listening to the Kindle 2 is not engaging in a public performance, which is where the US Copyright Act applies.  As for the second claim, the EFF also argues that the ebook reading is not a derivative work, which is defined by the US Copyright Act as “ a work based upon one or more preexisting works … in which a work may be recast, transformed, or adapted.”  In order for it to be a  derivative work, there would have to be originality or creativity, which is not present in a text-to-speech program.  In addition, the audio recording not being permanent, which is a necessity for a derivative work.

When Engadget questioned Mr. Aiken on how the Kindle 2 reading a book out loud was different from a person reading the book out loud, he argued that the Kindle was “paying an audio version that the publisher often does not have the right to sell.”  Throughout the interview, he thinks of the Kindle 2 as being a multimedia device–an ebook and audiobook player in one, when the Kindle 2 is just an ebook reader that manages to convert text to speech and not produce  any permanent results.  There is no derivative work or copy being created because the speech-to-text is on the fly.  Whether copyright law could cover non-fixed works is another issue, but appears to be clear that the Authors Guild copyright claims do not hold.

The idea that the Kindle 2 could replace audiobooks is an overreach, but I think the effect of the Kindle 2 on audiobooks is an interesting idea to think about.  In his op-ed, Mr. Blout worries about future technologies and the research IBM is doing on more realistic computerized voices.  But no matter how realistic computer voices are, they cannot mimic the performance qualities of an audiobook.  A computer may one day be able to sound like a human, but a computer will not be able to understand the rise and fall of plot lines and talk faster when the scene calls for it, or even necessarily pause at the right dramatic times.  There are two audiences being talked about: those who want audiobooks because they’re performances, and those who just want to hear the text (who have been underserved until now).  Until now, those who just wanted to hear the text had to buy audiobooks and pay the extra money that they didn’t want to, for a performance.  Thus it is possible that the Kindle 2 would cut into audiobook sales, but these would be the people who don’t need the extras of an audiobook, and the vast majority of those people probably would not have paid extra for the audiobook.  The customers audiobooks would lose to the Kindle 2 may not have bought audiobooks in the first place–they may just have interested in their potential.  This is a futuristic scenario though, and reports of the Kindle 2’s abilities indicate that no one who enjoys hearing books would replace their audiobooks with a Kindle 2 anytime soon.

All of this speculation is for naught.  Legally, the Authors Guild’s claims don’t seem to hold, but the controversy has dimmed a lot of the Kindle 2 hype.  Yesterday, Amazon announced that they are allowing individual publishers disable the text-to-speech abilities of their ebooks on the Kindle 2.  Amazon still maintains the legality of the feature.   I think it will be interesting to see which publishers take advantage of Amazon’s offer.  Is it possible that customer pressure prevents this?  I am sorry that this debate won’t be played out in the courts–I really wonder if the Authors Guild doesn’t understand how the text-to-speech feature works, and honestly are arguing what they are, or if they feel like their market share is threatening and are clinging onto what they think copyright is.  In their case, it’s more worthwhile to remain ignorant and cause a fuss, because Amazon is neither interested in controversy or upsetting authors.

One Response to “The Kindle 2’s Correct Copyright Claims (and the Authors Guild’s Incorrect ones)”

  1. Princeton Students (including me!) Blog about Tech Policy | The Technology Liberation Front Says:

    […] to contribute one post per week. I’ve been impressed by the quality of a number of posts. Here is a good post by “Jen C.” about the Author’s Guild’s implausible claim […]

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