Comments on: Kindle Text Reading Feature Raises Copyright License Questions

By: Controversy Kindled By Copyright Issue Is Resolved By Contract at a r b o r l a w

Wed, 18 Mar 2009 03:49:30 +0000

[...] Here’s a brief update to the copyright controversy created by the text-to-speech function of the Amazon Kindle 2: [...]

By: Arborlaw

Arborlaw — Tue, 24 Feb 2009 16:00:26 +0000

Hi Miles, thanks for dropping in! I think you said a lot with the phrase “gray area.” You raised about five issues.

First I want to clarify what I mean by the ‘performance right.’ I’ve already received remarks about the public- versus non-public performance distinction. The Section 106(4) performance right is only for public peformance. And frankly, what I was envisioning as I was writing this blog post — was the Kindle user on the subway who’s listening to a book, surrounded by a group of people. That’s probably not the main intended use of Amazon for the Kindle 2 — but it’s definitely one that can be anticipated. If Amazon is not directly raising Section 106(4) performance right issues, their users might be.

Blind users have wide exemptions for their devices. Libraries and educational situations do as well, in the Copyright Act sections which follow Section 106.

Then there’s the issue about machines “performing” works.

And the issue of whether copying a program combined with data (the e-book loaded onto the Kindle 2) into RAM is making a “copy” under the Section 101 definition of a “copy” in the US Copyright Act. The extremely early computer law cases on videogames settled that one: YES. (There are some subtleties and maybe my colleagues will point some of those out.)

My point on performance mostly hinges on the capability of making a private performance by a machine “public” — e-books and Kindles are highly portable. Any time you take one out in public, it will be by definition creating a public performance.

There are differing points of view on this argument (text-to-speech technology and its ability to create a “performance” of a work under the US Copyright Act). It’s not settled and is therefore, capable of generating a lawsuit. Of course, you can always argue what the law *should be* and I think we are now at that point in copyright policy.

Here’s a link to a discussion of the text-to-speech issue on Engadget:

http://tinyurl.com/c7b92j

Carol Shepherd
Arborlaw PLC

By: magicmiles

magicmiles — Tue, 24 Feb 2009 15:03:25 +0000

Carol dear. Nice to see your fine legal mind at work. However if I may be so bold as to point out to you, copyright, as you so well know only goes so far. The provisions that you are referencing, only cover LIVE PERFORMANCE of a work. While there is a VAGUE reference to audio works, it doesn’t apply here because the copyright would need to be extended to machines talking to us. If that were the case, then Apple’s operating system would be in violation as well, as would windows XP and Vista, and Linux. Because all THREE operating systems, contain the same ability. The user has the ability to highlight text and the operating systems have built-in text reading capabilities. Suppose for a moment that the user visits the webpage of the NY Times. Now suppose that said user would like to read their mail BUT at the same time have the cover stories of the NY Times read out loud while they’re reading their mail. The user would highlight said cover stories, and select a few options (in the case of OS X a single click) and bam, instant voice reading out loud the cover stories of the NY Times website. Who’s voice is that ? Is it a live performance of a copyrighted work ? Is it a human voice, and is that human expecting a fee from those that listen to the works for ITS reading the news out loud ? Note the use of the term “ITS”. The voice is computer generated, and there is no human attached to it. Its a function of the operating systems involved. And there is no fee involved for hearing that work outloud. Let’s take that one step further in the supposition, and suppose that the user is in fact BLIND. You see where this is going yes ? The supposition doesn’t detract from the legalities of the implications of what you’re referencing. The simple fact is that the copyright law doesn’t cover this supposed gray area of kindle 2′s existence. Because there isn’t a gray area. Its rather clear in fact. And even if the Supreme Court, or a lower circuit court were to enact a limit on Kindle 2′s abilities, it would only apply private works, not public domain works.