Thursday, February 12, 2009

Authors Guild explains stance on new Kindle 2; muddies the waters

The Authors Guild has released a statement attempting to clarify an earlier quotation from its executive director, Paul Aiken, suggesting that the text-to-speech "read-to-me" feature of the new Kindle 2 violates authors' copyrights. The Guild's statement is rather vague and, most notably, does not explicitly accuse Kindle-distributor of infringing its members' copyrights. According to the Authors Guild, the Kindle 2:
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 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.


  1. Mr. Sheffner, I have asked you before not to misrepresent our positions. Amusingly, you chose not to publish that comment, telling me quite a lot about your so-called "journalistic integrity."

    You say that we made a "ludicrous suggestion." That is blatantly false and misleading (and you know that). The point we made (apparently which went right over your head) was that what he SAID implied that -- which was obviously ridiculous.

    I would appreciate it if you refrain from making such blatantly false implications about what I write. It reflects incredibly poorly on you and your credibility.

  2. Your suggestion that Aiken was either stating or implying that "Read[ing] to your kids at night" (your words) was copyright infringement was indeed ludicrous. He did neither. In fact, you said in your comment to my previous post that you "agree [with my interpretation of] what he probably *meant*," which was that Aiken was *not* saying that reading to one's kids is copyright infringement. I didn't misrepresent anything.

    Your previous comment was not published because its focus was on the personal, and not the substance of my post.

  3. 1. Our point was to point out why what he ACTUALLY SAID is ludicrous.
    2. From what he ACTUALLY SAID, you COULD easily interpret it to mean that reading to your children was infringement. That's what was ludicrous, and that is what we were pointing out.
    3. Writing that wasn't to suggest that's what he actually MEANT, but as a clear DEMONSTRATION of why what he SAID was ludicrous.

    To turn that around, and make it sound like we actually thought he MEANT that, is simply a fabrication. It reflects incredibly poorly on you that you insist on keeping it here.

    Furthermore, my previous comment was not focused on you personally, other than to point out that I was upset with the false light in which you portrayed my statements.

    I will ask, once again, that you refrain from misrepresenting what I have written.

  4. The only misrepresentation was your misrepresentation of what Aiken said. You wrote that "according to Aitken [sic]," "any reading outloud from a book that is not yours is also a violation of copyright law" and "Read[ing] to your kids at night" could lead to "Authors Guild police banging down your door." That interpretation of Aiken's quotation was indeed ludicrous.

    If you can't tell the difference between a substantive comment on a post and personal attacks on its author, you shouldn't bother drafting the comment, because I won't post it.

  5. Concerning the original content in the post (I have nothing to say about whether anyone's suggestions could be accurately categorized as ludicrous or not), I think the Author's Guild is still mostly wrong. I doubt this text-to-speech function will dramatically alter the market for audiobooks. There is a huge difference between hearing Barack Obama read "Dreams from my Father" and hearing an electronic voice synthesizing the same words.

    Besides, customers would probably substitute e-books for audiobooks, if anything. I can't really see that many people paying separately for both an e-book AND an audiobook.

    Ultimately, I think Big Content generally suffers from a myopic perspective on IP - that they tend to focus on whether an entity has the legal right to do something with their work, rather than honestly asking how that affects the commercial market for the original. I'm not saying that under copyright law, commercial mashups are legal, but that I advocate reform that forces content owners to understand that infringment is NOT always a zero-sum game. Content owners need to coopt unforeseen uses of their works if they expect to profit from their prominent role in the information economy - the current regulatory framework for IP isn't working for content owners OR those who try to use them in creative ways.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.