They [Amazon] don't have the right to read a book out loud.... That's an audio right, which is derivative under copyright law.Is he right? Let's take a look. The Copyright Act grants authors several exclusive rights, among them the right to "prepare derivative works based upon the copyrighted work" and "to perform the copyrighted work publicly." 17 U.S.C. § 106(2),(4).
A pre-recorded "audiobook" is clearly a derivative work, and a company wanting to make and sell an audiobook must obtain a license from the copyright owner. But as I understand the Kindle 2, it does not include actual recorded audiobooks; rather, it simply includes technology that reads aloud the text (text which I assume it has licensed). And the electronic "reading" is never "fixed," so there is a good argument that a derivative work is never prepared (though there is controversy about this).
The more difficult question is whether the text-reading function of the new Kindle implicates the public performance right. Section 101 of the Copyright Act defines "publicly perform" as:
to transmit or otherwise communicate a performance or display of the work...to the public, 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.Authors might argue that Amazon has essentially set up a system that, through the Kindle, publicly performs the work each time the user engages the "read-to-me" function. Amazon would likely counter that: 1) at most, there are numerous private performances, which copyright law permits; and 2) the user -- not Amazon -- is the one doing the performing. Cf. Cablevision (cert. petition pending). I'd need to know a lot more about the way the new Kindle actually functions before offering an opinion as to whether Amazon's actions potentially violate anyone's public performance right.
The other thing to keep in mind is that we don't know the terms of authors' contracts with their publishers, or the publishers' contracts with Amazon. Depending on the scope of the grant of rights, Amazon may have an argument that it already does have a license that covers the "read-to-me" feature -- which would extinguish any possible copyright claim.
One last thing: Techdirt says of the quote from Mr. Aiken of the Authors Guild above:
And, actually, if you take that reasoning further, any reading outloud from a book that is not yours is also a violation of copyright law, according to Aitken. Read to your kids at night? Watch out for the Authors Guild police banging down your door.Similarly, the headline of the Techdirt piece reads, "According To Author's Guild, You Cannot Read Books Out Loud." Absurd. Whether or not Aiken is right about the copyright implications of the new Kindle (and I am far from sure that he is), his statement says nothing about "any reading outloud from a book that is not yours" or "[reading] to your kids at night." Reading aloud to one's kids is a private performance, which the Copyright Act mercifully leaves unregulated. I strongly suspect Mr. Aiken knows that, and that he did not mean to suggest otherwise -- and he does not intend to bang down anyone's door.