Tuesday, February 10, 2009

New Kindle's 'Read-to-Me' feature: copyright problems ahead?

Amazon.com's release of the new Kindle 2 -- which includes a "read-to-me" feature whereby a computer-generated voice can read books aloud -- has sparked a bit of a copyright kerfuffle. Referring to "read-to-me," Paul Aiken, Executive Director of the Authors Guild, told the Wall Street Journal:
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.


  1. thx I really liked how well this was written. I know people who are blind, and had wondered if Kindle would leave them behind. Also, as a teaching tool for reading, if it works well, that is another good feature for adults and kids learning to read.

  2. I agree what he probably *meant* but you are reading into his meaning. I was commenting on what he actually SAID, which is that there is no right to read aloud.

    But, other than that I actually agree with your legal analysis. The Cablevision case could have a pretty big impact on something like this -- which actually highlights how ridiculous the claims are on the studios side in that case. In both the Cablevision case and in this situation, if your friends in the entertainment industry get what they want, it'll pretty much go against the most basic common sense out there.

    But, I guess that's not so surprising.

  3. All we know of Aiken's position is the short quote from the WSJ article: "They [Amazon] don't have the right to read a book out loud.... That's an audio right, which is derivative under copyright law." I'm sure that quote was part of a longer interview, and it's unfair to say that the portion the WSJ reporter (or editor) chose to use represents the sum total of Aiken's thoughts. Given that you now say you know what he meant, it's silly to write as if he's making some blanket statement about reading aloud, which he clearly wasn't.

    To dismiss the Cablevision case as just a matter of "common sense" is to ignore what a doctrinally difficult case it is, especially as to the boundaries between primary and secondary liability. A very respected District Court judge heard evidence over several days of a summary judgment hearing and then wrote a detailed opinion ruling for the plaintiffs. On appeal, the Second Circuit reversed in another very detailed, 44-page opinion. Now, at the Supreme Court, the justices think it's such a difficult case that they've asked the Justice Department to weigh in on whether the Court should hear the case. There are smart, reasonable people on both sides of this one, and the courts are struggling to come to the right conclusion based on the statute and case law -- it's not simply a matter of applying someone's version of "common sense."

  4. Legal issues aside, which I am finding interesting, and societal benefit issues aside (book access for the blind etc.), one wonders if Amazon couldn't create some kind of blanket "read-to-me" fee for the book. Something in the realm of $0.49 to $0.99 for each book sold to compensate the authors for the use of the read to me function.

    One might also add that the establishment of a read-to-me "add on" might help them establish the cost of a read-to-me "only" offering that they could make available for those who have various sight related issues.

    There are some pretty interesting legal issues here, and I look forward to reading more about them as they develop, but I think that this is an opportune time for Amazon to beat feet to make an issue moot while simultaneously building the foundation for a better relationship with their customers.

  5. Great analysis. A couple quick points about Amazon's likely defense to a claim that Kindle 2 violates performance rights:

    If for some reason Amazon is unable to show that the Kindle 2 "performances" are private rather than public, the Cablevision case won't be much help in combatting a claim of indirect infringement. By stipulation of the parties, that case only dealt with direct infringement, so the holding that the users of the Cablevision system (rather than Cablevision itself) were responsible for making copies when they pressed the record button on their cable/DVR set top boxes won't shield Amazon from a claim based on inducement or contributory infringement.

    That said, I can't see how a Kindle 2 "performance" made in the course of the normal and intended use of the device could possibly be seen as public. Assuming the user of the device is the one responsible for the performance, the text-to-speech feature would surely be capable of substantial non-infringing (e.g., non-public) uses, and I can't imagine Amazon is doing anything to induce Kindle 2 users to make public use of the text-to-speech feature.


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