presents a significant challenge to the publishing industry. Audiobooks surpassed $1 billion in sales in 2007; e-book sales are just a small fraction of that. While the audio quality of the Kindle 2, judging from Amazon's promotional materials, is best described as serviceable, it's far better than the text-to-speech audio of just a few years ago. We expect this software to improve rapidly. We're studying this matter closely and will report back to you."Presents a significant challenge" and "studying this matter closely" is a far cry from "must immediately cease and desist." I don't take from this statement that the Guild is running to court anytime soon, if ever.
The Guild does correctly recognize that any disagreement over the "read-to-me" feature could be resolved through contract; authors (or publishers) are perfectly free to tell Amazon (individually): we won't license our books to Amazon as long as the text-to-speech feature remains part of the device. Advises the Guild:
we recommend that if you haven't yet granted your e-book rights to backlist or other titles, this isn't the time to start. If you have a new book contract and are negotiating your e-book rights, make sure Amazon's use of those rights is part of the dialog. Publishers certainly could contractually prohibit Amazon from adding audio functionality to its e-books without authorization, and Amazon could comply by adding a software tag that would prohibit its machine from creating an audio version of a book unless Amazon has acquired the appropriate rights.Lastly, the Guild attempts to knock down the ludicrous suggestion that Aiken said that it's a violation of copyright to read to one's kids in private:
It isn't, unless the reading is being done by a machine.Well, I'm with them on the "it isn't" part; clearly reading to one's kids is a private performance (for which no license is required), not a public performance for which the Copyright Act requires the copyright owner's permission. But the Guild loses me if it means to say, as a blanket matter, that "private out-loud reading" (the words used in its statement) is copyright infringement if done by a machine. If it's truly a private performance, then it's simply not copyright infringement -- whether the reading is done by human or robot.
Now there may be circumstances where a machine that reads to people inside the home is part of a public performance. Say a company sets up a giant server with audiobooks stored on it; subscribers get a small device with a screen and a speaker; they choose a book, and then the server beams the audiobook to the device, which instantly "reads" it to the customer in his living room. I'm pretty confident that's a public performance under the second clause of the "publicly perform" definition in Section 101:
to transmit or otherwise communicate a performance or display of the work...by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.In other words, in my scenario, it's a "public performance" even though the "reading" itself takes place in the privacy of one's home (just like a TV broadcast into your home is a public performance). I don't know if this is the kind of thing the Guild had in mind when it said that a "private out-loud reading" is an infringement if "the reading is being done by a machine." But the overbroad wording in its statement is only going to confuse matters.