Comments on: Does the Kindle 2’s text-to-speech feature violate copyright law?

By: Al

Al — Thu, 26 Feb 2009 15:23:51 +0000

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?

By: Hugo Cox

Hugo Cox — Fri, 20 Feb 2009 17:39:07 +0000

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.

By: Sam

Sam — Thu, 19 Feb 2009 13:40:38 +0000

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.

By: Evan Brown

Evan Brown — Wed, 18 Feb 2009 16:45:42 +0000

@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?

By: Todd Knarr

Todd Knarr — Wed, 18 Feb 2009 16:23:30 +0000

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.

By: Rjack

Rjack — Wed, 18 Feb 2009 16:08:33 +0000

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;

By: Hugo Cox

Hugo Cox — Wed, 18 Feb 2009 13:49:48 +0000

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?

By: dave greene

dave greene — Sun, 15 Feb 2009 16:38:10 +0000

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.

By: mmm

mmm — Thu, 12 Feb 2009 17:45:38 +0000

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.

By: Evan Brown

Evan Brown — Wed, 11 Feb 2009 23:17:02 +0000

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).