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