Kindle 2 Speech:

There's an interesting little copyright kerfuffle afoot in regard to the release of version 2 of Amazon's Kindle e-book device. The Kindle 2 incorporates a "text-to-speech" function; that is, for books that you download onto your Kindle, a function is provided whereby you press a button and the device translates the text into computer-generated speech.

Cool stuff. The Author's Guild, on behalf of book authors, is not so enthusiastic. It is asserting -- thus far, only in public statements, and not in any court proceedings, though they may come -- that the Kindle 2 functionality infringes the copyright holder's rights to create "derivative works," and, therefore, is not within the license granted by authors to amazon to distribute their works on Kindles. [The National Federation of the Blind, incidentally (and for obvious reasons), disagrees]

It's a knotty copyright issue, actually -- though I'm reasonably certain that Amazon has the better of the argument. Here's how it looks to me. Amazon already has the right to "reproduce" and "distribute" the books it sells in Kindle format -- under the terms of which the copyright holder gets a royalty for each reproduction/distribution. So far so good. The license covers reproduction and distribution only; it does not give Amazon the right to "publicly perform" the copyrighted work, or to "create derivative works" based on the copyrighted work.

A sound recording of the book -- an "audiobook" -- is, clearly, a "derivative work" under copyright law. In the Copyright Act, a "derivative work" is defined to include "sound recordings . . . or any other form in which a work may be recast, transformed, or adapted," and "sound recordings," in turn, are defined as "works that result from the fixation of a series of musical, spoken, or other sounds." Because the audiobook "fixes" sounds (onto a CD, or a computer disk, or some other tangible medium), it's a derivative work. So when sells you an audiobook copy of a book, they need a "derivative works" license from the copyright holder.

Pre-Kindle 2, in other words, copyrightholders have two separate sources of licensing revenue: Amazon (for the reproducing and distributing copies their book) and Audible (for making "sound recordings" = "derivative works" based upon their book).

Along comes Kindle 2. There's no "audiobook" involved in the Kindle transaction. The copy that customers receive is just the (marked-up) text, in Kindle format - same as before. The sounds are generated on-the-fly when the user presses the right button -- the sounds aren't "fixed" anywhere, i.e. they're not stored separately from the text itself. Therefore, no sound recording; therefore, no derivative work; therefore, no additional royalty revenue for the copyrightholder.

There may be more to it than this - the Author's Guild may be able to come up with an argument that the generation of the sounds, while not a "sound recording," nonetheless creates a derivative work because it "recasts, adapts, or transforms" the original work into a new medium. There are some messy precedents out there on which they may be able to rely to make this argument. I doubt it, though. They face a very difficult slippery slope -- if Amazon needs a separate license because Kindle 2 is creating a derivative work, then presumably so does everyone who reads a book out loud, even to him/herself. That looks a little harsh to me, and I very much doubt that that's the law.

Soronel Haetir (mail):
As a blind person who already uses text-to-speech to use computers at all I find the authors position here frusterating. Audio books and TTS serve very different purposes. I prefer TTS to narration because I can set the TTS to speak much faster than any narrator would.

So while the publisher may be thinking they can make more money by selling audio books as well as text copies, they are in fact missing out with at least some customers who simply won't but spoken book recordings. This is also an area where I feel no ethical qualms about breaking the law if such is actually a violation. I have a copy of the book, I should be able to media shift it into a form I can actually use.

I don't know what kind of voice quality the Kindle provides, but modern voices on PCs are becoming quite good, far better than the old mechanical sounding voices such as that used by Steven Hawking.
2.21.2009 10:52am
Matthew K:
I can't imagine that the Author's Guild's position will be upheld. There are dozens of text to speech computer programs, including Microsoft Reader (which exists primarily to serve ebooks). Also, the text to speech function is usually...unenjoyable; qualitatively different than an audiobook.
2.21.2009 10:54am
My main question is this: will the speech produced be natural and listenable?

I know that current copyright law already contains significant statutory exceptions designed to aid blind people in getting access to TTS versions of books, but that no one much complains about potential lost revenue because these TTS versions are unbearable to listen to for anyone who hasn't accustomed themselves to them.
2.21.2009 11:00am
Bill Smith (mail):
David, it might interest you to know that Amazon purchased Audible last year. The deal was announced January 31, 2008.
2.21.2009 11:00am
TomHynes (mail):
Coase Theorem.
2.21.2009 11:06am
Pizza Snob:
The obvious compromise here is to insist that Amazon pay a slightly inflated licensing fee for Kindle rights. I don't think anyone would begrudge the authors that, as they are clearly losing some revenue here.

Do the singing robots at Chuck E Cheese and Disney pay royalties for their music?
2.21.2009 11:12am
James968 (mail):
So if my sister read Harry Potter (aloud) to my nephews, has she created a derivative work?
2.21.2009 11:32am
Oh the horror:
Books on an electronic device are evil. Sort of like automatic transmissions, light beer, fake leather, digital watches, Olestra, low-fat cheese, disposable ball point pens, compressed audio files, fake breasts, and emailed Christmas cards. Oh, and those damned energy efficient light bulbs.

The end of the world is here.
2.21.2009 11:38am
Archit (www):
You would think there is no fixation, but it might be a close case.

RAM can be simply defined as a computer component in which data and computer programs can be temporarily recorded. . . . This would only be a temporary fixation. . . . While we recognize that this language is not dispositive, it supports the view that the copy made in RAM is "fixed" and qualifies as a copy under the Copyright Act. . . . [S]ince we find that the copy created in the RAM can be "perceived, reproduced, or otherwise communicated," we hold that the loading of software into the RAM creates a copy under the Copyright Act. 17 U.S.C. § 101. We affirm the district court's grant of summary judgment as well as the permanent injunction as it relates to this issue.

MAI Sys. Corp. v. Peak Computer, Inc., 991 F. 2d 511 (9th Cir. 1993).
2.21.2009 12:00pm
CDU (mail) (www):
Regardless of the legal merits of their claims, pursuing this in court would be a disaster from a public relations point of view. When one side of the argument is authors asking for more money and the other side involves the blind and parents reading to their children, it's not hard to guess who's going to end up looking better in the media.
2.21.2009 12:08pm
Tony Tutins (mail):
30 years after Kurzweil produced his reading machine, the Author's Guild proceeds to lock the barn after the horse has fled. As was pointed out, in the interim, read-aloud software has been produced for PCs.

Authors hate blind people, apparently.
2.21.2009 12:08pm
R Nebblesworth:
The Author's Guild doesn't care about blind people!
2.21.2009 12:14pm
KenB (mail):
I read to my children, and if I am lucky enough ever to have grandchildren, I will read to them. But I'm not going to volunteer to pay royalties. I'm envisioning no-knock warrants to crash in unexpectedly to catch people reading to children or the blind. If not a public relations coup, it would lead to a coup of some sort.
2.21.2009 12:16pm
Matthew K: Also, the text to speech function is usually...unenjoyable; qualitatively different than an audiobook. Exactly. A good audiobook is a performance, an artistic creation in itself. Its hard for me to imagine a TTS device being as enjoyable.
2.21.2009 12:20pm
arbitraryaardvark (mail) (www):
"recasts, adapts, or transforms". The text of audiobook, if transcribed, is usually significantly different that the text of the original. And the voice actors dramatize the dialog. A genuinely new derivative work is produced. This also happens when you read to your kid, but that's within fair use and isn't the target of the lawsuit. The kindle reader, and other text to speech devices - the mac has these - are more of a mechanical process, more like displaying the text in a different font than the author chose. A different font wouldn't be a new derivative work, or would it?
2.21.2009 12:41pm
Sam H (mail):
"Along comes Kindle 2. There's no "audiobook" involved in the Kindle transaction. The copy that customers receive is just the (marked-up) text, in Kindle format - same as before."

Does this mean that the text was marked-up with audio cues to produce better output or what?

If is audio cues, then I think Amazon has a problem, otherwise they should be in the clear.
2.21.2009 12:50pm
Soronel Haetir (mail):

Matthew K: Also, the text to speech function is usually...unenjoyable; qualitatively different than an audiobook. Exactly. A good audiobook is a performance,
an artistic creation in itself. Its hard for me to imagine a TTS device being as enjoyable.

As someone who actually uses TTS I disagree greatly. I find human narration to be far too slow to be enjoyable. I also don't find human voice tone to be greatly helpful.

I will admit that the TTS has a few jarring issues, words with odd pronuciation etc, but after a couple years of use they have faded far into the background.

A different font wouldn't be a new derivative work, or would it?

Probably not in most cases, though I could see someone like Shel Silverstein being able to make that argument given that his book contracts specified the paper to be used and other stylistic issues that wouldn't seem germaine to most authors.
2.21.2009 1:08pm
midlantan (mail):
Archit - MAI v. Peak is often cited as the basis for argument that "RAM copy"="fixation for copyright purposes," but it provides at best weak support for the argument that the fleeting buffered bits used to produce sounds in a Kindle 2 would qualify as an infringing reproduction. If the Kindle doesn't "fix" sounds, then the audio isn't going to be an infringing reproduction.

Pizza Snob -- Yes, indeed the Chuck E. Cheese robots *do* pay royalties for performing other people's songs (although I suspect not out of their own pockets -- those robots are paid slave wages!) The Kindle 2's read aloud might be a "performance" of the work for copyright purposes, but in the US at least, copyright grants authors the exclusive right only to *public* performances, not private ones. The Authors' Guild may try to argue that providing the Kindle 2's functionality to many different people makes it "public," but that's just silly.

Nevertheless, the Authors' Guild seems merely to be trying to make hay over this, and extract (although some would say extort) an extra licensing fee from deep-pocketed Amazon. Author's don't *have* to license their works to be Kindle ebooks, after all. They could simply refuse unless Amazon disabled the read-aloud feature, or unless Jeff Bezos gave the authors daily backrubs, or unless Amazon paid the authors a zillion extra dollars. The authors have this additional leverage can do this because producing the ebook requires an extra step of reproducing the book in an electronic format. Authors don't have the same leverage when it comes to bookstores, since once Amazon buys the printed copies of the authors' books, there's not a lot the authors can do to control what Amazon does with them. (Due to the first sale or exhaustion doctrines.)

The Authors' Guild doesn't really have a decent copyright-based legal argument against the Kindle 2, but the noise they're making might get their members some additional concessions from Amazon. This may be a good strategy for the AG's members -- if you want to make some weak, somewhat embarrassing quasi-legal arguments that might earn you some extra cash, it's probably better to have your trade association do it for you.
2.21.2009 1:28pm
Howard Gilbert (mail):
When Amazon transmits an EBook to a Kindle, it is not in the form of printed characters. It is a stream of bytes encoded to represent characters. To view the book the Kindle must engage in a sequence of transformations: compressed to decompressed, bytes to characters, characters to dots, dots to electronic signals to the screen. Then our eyes see what is actually a pattern of light waves reflecting off the surface. The Kindle2 provides an alternate sequence: compressed to decompressed, bytes to words, words to phonemes, phonemes to speaker, and then our ears hear what is actually a pattern of pressure waves propagated through the air.

What Amazon sells is the compressed byte stream. The device then transforms that stream into something that can be viewed or heard. So unless the contract terms limit the mechanism through which the material can be transformed for human perception, there is no basis for complaint. The material downloaded into the device wasn't inherently visual in the first place. Although sighted people will think first about emulating printed books, from a purely technical point of view the two transformation sequences are equally valid.
2.21.2009 1:53pm
I believe that book purchasers who read a book aloud wouldn't need a derivative license, even if Amazon were to lose this suit (which I don't think it should), because their creation of a derivative work would be fair use.

It's actually rather like the Sony Betamax case. There, the court said that time-shifting a TV broadcast via tape recording was fair use because it was either constructive permissive use (because the copyright holder wasn't complaining), or (if the copyright holder was complaining) it is fair use because it is personal and will not effect the market for the show (because the court didn't buy people fast-forwarding through ads or dodging market share counting).

In the same way, the copyright holder of a book being read aloud is either not complaining (and thus it is a constructive permissive use), or– if they did– it is clearly a personal use which obviously won't affect the market (since the person already bought the book).

Of course, this analysis does not help Amazon the way it helped Sony. The fact that a book purchaser can read a book aloud does not necessarily mean that Amazon can create a TTS functionality that does the same thing-- it's part of a commercial device (the Kindle 2), and could have a negative effect on the market (both for books and for audio recordings of books). My point is just that an adverse ruling for Amazon in this case does not mean the end of reading a book to your kids before bed.
2.21.2009 2:37pm
TruePath (mail) (www):
Would it even be amazon who was the infringer in the first place?

I mean no one is suggesting that the reading software is infringing and no one is suggesting the pure marked up text is infringing. Thus it would seem that the only person here who could be directly infringing copyright is the consumer. However, I guess it might then be a fight about whether Amazon is engaging in contributory infringement.

On a larger level this would be a very troubling precedent if Amazon lost. At least as far as I am aware the fact that the sounds were produced by a mechanical device is irrelevant to copyright law. What matters is that they were stored in such a device, i.e., were not purely stored in the head. Given this understanding it would seem that any such ruling would make reading a book to your kid over the phone would be infringement since the phone company places copies of the packets into ram while they are inspected and routed.

Now maybe there is some fair use or other defense that could be made regarding reading to your child over the phone. However, it's hard for me at least to see why that would not also be available as to the Kindle user.

As a broader issue of policy I think the law should mandate that individuals are either given the all rights to transform and use without distribution or no rights to the copyrighted material. In other words copyright should not allow the holder to dictate how the data they have rights to is used by the consumer so long as no derivitive work is distributed to someone who lacks the rights to access the work.

Basically the government should not be in the buisness of telling me what is and is not 'me'. There is a very real sense in which my computer is an extension of my memory. There shouldn't be an arbitrary division which says that as long as you don't use a computer or paper to store your thoughts it's ok to do something with a work (like read it) but if it touches silicon instead of neurons it's a whole different ballgame.
2.21.2009 2:44pm
TruePath (mail) (www):
Ohh yah and I should add that if the law doesn't move in this direction there will be some real thorny issues in a couple decades when the various types of primitive computer/brain interfaces start becoming more sophisticated.

We already have artificial eyes that can send the images they see along to the brain. Currently they are just pushing 16 pixels but there is every reason to believe in a decade or two artificial eyes will have the same resolution as natural eyes.

Are we really going to say that if you store an image on the computer that controls your artificial eyes that's not copyright infringement but if you store it on your desktop it is? Possibly a good artificial eye while require caching the input data for some time to emulate the neurons that detect changes in the input an even if not surely we shouldn't bar an artificial eye from caching images to implement low light correct or other fancy features. Or do we just pick a number out of the sky and say that is how long you can store it on this kind of device before it becomes infringement.
2.21.2009 2:53pm
Howard Gilbert has it right.
2.21.2009 3:04pm
Sean O'Hara (mail) (www):
We should note that author groups don't necessarily reflect the views of their members. There was an incident a couple years ago where the Science Fiction Writers of America went after Scribd, a website that allows for the sharing of text files. Some users had placed copyrighted works on the site, and the SFWA sent out a DMCA takedown listing all their members who were represented there. The only problem -- they included some of Cory Doctorow's books. Doctorow is both a member of the SFWA and a copyleft proponent who wants his books to be distributed freely online. When he found out, he went ballistic.

I wonder how many Authors Guild members actually object to the Kindle 2's ability?
2.21.2009 3:31pm
Duffy Pratt (mail):
Does anyone know whether there have been similar disputes in the music area. MIDI files can be read by a synthesizer/sequencer to create an audio playback of music. Put the same data through notation software, and you can get the written/notated version of the music instead of audio. It's a very similar situation, and the technologies have been around for years. So, does anyone know if the similar issue has come up before?
2.21.2009 3:32pm
Frater Plotter:
Apparently at least some authors are rather miffed at this presumption on the part of the Authors Guild. Neil Gaiman, for one.
2.21.2009 4:38pm
Teh Anonymous:
Duffy: this is going to be somewhat circuitous, but bear with me.

Emma Bull is a fantasy author and musician. Her 1987 book War for the Oaks involves (among other things) a band. In one scene, the keyboard player wears a button that says "When MIDI talks, money walks."

I don't know if the buttons actually existed, but clearly, at some point, at least some musicians were thinking about it. (At least one, if you insist.)
2.21.2009 4:42pm
John L (mail) (www):
As a member of the Authors' Guild for many years I can assure you that they are a bunch of utter Luddites, and never ask the members before setting out on yet another copyright overreach jihad. Some of their efforts are just ill advised and greedy, like this one, while others like copyright extension are actively bad for the members. (The number of authors still getting royalties from 50 year old stuff is a whole lot less than the number who take advantage of public domain material in our works.)

They do a lot of good stuff for their members, notably dealing with publisher and royalty problems, but I wish they would stay out of stuff they don't understand.
2.21.2009 5:45pm
TomHynes (mail):
Perhaps my two word "Coase Theorem" comment was cryptic.

To elaborate: Next time the parties negotiate a license for a book, the topic of rights to TTS will be negotiated. It doesn't matter who has the initial rights.
2.21.2009 5:52pm
Reading aloud in private does not implicate the Copyright Act; it is does not involve any of the exclusive rights granted to authors.

No fair use required.
2.21.2009 6:29pm
DiverDan (mail):
I have to go with some of the commenters above -- if there is no "fixation", there is no "sound recording", and therefore no derivative work. While the Kindle 2's conversion to speech might constitute a "performance" for purposes of copyright, unless it is a "public performance", i.e., done for a paying audience, there is simply no copyright infringement. This is no different than a book purchaser reading the book aloud to himself --something I often do with poetry, since 80% or more of the enjoyment of Robert Service, Edgar Allen Poe, and Rudyard Kipling lies in hearing the rythm and the rhyme). Here, the purchaser, for whatever reason, has chosen to delegate the job of reading out loud to a computer. No infringement.
2.21.2009 7:35pm
Jon Roland (mail) (www):
To be "derivative" there has to be a creative component, and there is none for a purely mechanical rendering of text into sound (even if a sampled human voice is used).

The reasoning for this can be found in The Bridgeman Art Library, Ltd. v. Corel Corporation, 97 Civ. 6232 (LAK) — Ruling that photographic or digital images of public domain art works are not copyrightable. Never appealed so the trial result stands as a precedent.
2.21.2009 7:47pm
Tony Tutins (mail):

Does anyone know whether there have been similar disputes in the music area.

As an early example of text-to-speech technology, people would buy "sheet music" and then play or even sing corresponding to the words and "notes" printed on the page. When done for personal use, no additional royalties had to be sent to the author.
2.21.2009 8:12pm
godelmetric (mail):
No. Ideologically, it's easy to see where most of the above comments are coming from, and from a PR perspective this case might be a disaster (and might well be lost for that reason), but the precedent is against Amazon here.

The relevant case here is not MAI, it's Tasini. If Lexis/NYT/whoever does not have the rights to derive search terms from the news articles to which they've already bought the rights, you can be damned sure that Amazon doesn't have the right to do TTS.

In fact, in this case the defendant's argument would be even worse, since search terms are (at least putatively) in the same subject matter category as the original work (literary works). TTS involves a conversion from a literary work to either a sound recording or a dramatic performance, which is almost without a doubt a derivative work. Moreover, it's very clearly not the transformative sort of derivative work that might otherwise be protected by fair use.

It's not a pleasant result (in fact, it suggests why Tasini is wrong), but there it is.
2.21.2009 8:53pm
godelmetric (mail):

To be "derivative" there has to be a creative component, and there is none for a purely mechanical rendering of text into sound (even if a sampled human voice is used).

The reasoning for this can be found in The Bridgeman Art Library, Ltd. v. Corel Corporation, 97 Civ. 6232 (LAK) — Ruling that photographic or digital images of public domain art works are not copyrightable. Never appealed so the trial result stands as a precedent.

With all possible respect, you have no idea what you're talking about. That case concerns the copyrightability of a purportedly derivative work (as against infringement of that work), not whether the work itself infringes on the original. You should have been tipped off by asking yourself how the plaintiff proposed to sue for the infringement of works that were in the public domain.
2.21.2009 8:59pm
Tim Torrent (mail) (www):
The content industry hasn't received the memo yet... but the test for value-adding to copyrighted works is pretty simple (although you'll never find this in Nimmer). Whenever a tech company comes along and increases the value of content that consumers have already conferred valuable consideration for, as long as the tech doesn't allow a "more public" performance, the court will find non-infringement either by fair use or missing elements. Perfect examples are Sony, Diamond, and most recently Cablevision.

I say a "more public" performance because the content industry nuts seem to think that the RS-DVR allows more people to see the user's copy than if the user just used a regular DVR, which is factually absurd. The TTS version of these books is not a "more public" performance than the regular version, and you can bet that no infringement will be found.
2.21.2009 9:01pm
Given TTS functionality, why isn't the text itself the necessary fixation of the sound recording?
2.21.2009 10:12pm
Jon Roland (mail) (www):

That case concerns the copyrightability of a purportedly derivative work (as against infringement of that work), not whether the work itself infringes on the original.

Of course, but it was not cited as a precedent for this case, but for a few sentences of the reasoning embedded in it, about the need for anything infringing to have some creative component. Mechanical TTS is not a derivation, because it contains nothing creative. A human reading the text would be.
2.21.2009 10:24pm
Elliot123 (mail):
Suppose Amazon included a translation program that made a French or German version... or any of forty other languages? Would that violate forty copyrights? Then an included TTS let someone listen in any of those forty languages? Violate another forty?
2.21.2009 11:02pm
David Schwartz (mail):
With only the exceptions specifically created by statute (such as translation), a derivative work requires *creative* derivation. That's why loading a program into RAM arguably creates a copy, but definitely doesn't create a derivative work.

No automated process (again, other than the exceptions mentioned in the statute) can create a new work, and a derivative work is a type of new work. All automated processes can do is copy a work.

A cassette player converts a work from magnetic domains on a piece of plastic to sound in the air, but the sound in the air is simply the same work as the magnetic domains.

Yes, in it's a different form. But it's not a derivative work because a derivative work is a new work that contains some creative elements from an original work and some new ones.
2.22.2009 12:28am
Tim Torrent (mail) (www):
@Jon Roland, godelmetric

The circuits are split on whether a derivative work must be fixed itself in order to be infringing.

One thing I haven't looked at is whether it actually is a derivative work in itself. There are a bunch of cases involving the early advertising incidents where the court looked at the story itself. As things go digital, people (read: judges) will realize that the art itself (protected) is not the medium that it's stored on (mostly unprotected). Amazon would argue that the good guy still got the girl and none of the story was changed, and because the art itself never changed, there's no infringement.
2.22.2009 12:51am
TruePath (mail) (www):
Why doesn't 110 (4) give amazon a free pass

performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if —

Sounds like there is no specific mention of a human doing the performing so doesn't this mean that users aren't infringing when the Kindle 2 reads aloud to them? If we assume that this section also protects reading aloud over telephones despite the copies in RAM made temporarily sounds lke the user isn't infringing so therefore Amazon (which is certainly not directly infringing) can't be a contributory infringer.

Or am I missing something.

godelmetric, Jon Roland:

I don't think the issue of whether it is a derivitive work or not really matters here. As I understood Tasini how the supereme court choose to classify the works in question affected whether or not the existing liscensce that the publishers possessed would cover the new uses.

As I've documented above you most certainly do have an explicit right to read literary works aloud in a personal setting. On the other hand suppose Amazon just made CDs of the Kindle reading aloud. At least from my understanding they would be infringing for the simple reason that they lacked a liscensce to distribute this copyrighted work and it's derivitive works in this format.

Ultimately it seems to come down to simply whether or not the ephemeral (IMO) storage in RAM while doing the reading creates a violation.
2.22.2009 1:22am
Wayne (mail):
The program is just a tool. The user is the one who converts the book to speach by using the program. I can ask a friend to do it, so can't I use a computer instead? Or did my son violate Rowling's copyright when he asked me to read Harry Potter to him?
2.22.2009 5:13am
David Schwartz (mail):
The circuits are split on whether a derivative work must be fixed itself in order to be infringing.

I guess anything is possible, but the law seems pretty clear on this. Here's what it means to "create" or "prepare" a work:

A work is “created” when it is fixed in a copy or phonorecord for the first time; where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time, and where the work has been prepared in different versions, each version constitutes a separate work.

And the exclusive right is:

... to prepare derivative works based upon the copyrighted work;

So if nothing has been fixed, the work at that time is nothing at all.
2.22.2009 1:19pm
Actually, the easiest solution would be for amazon to open the kindle up to FOSS devs, make it text-only HTML compatible, and don't load the TTS software onto the K2 at sale. Problem solved, the Author's Guild will shit a brick, and Amazon would sell a hell of a lot more units.
2.22.2009 2:02pm
I think the Authors guild should get more fees when kindle users set their systems to display larger fonts, as these create a derivative work that is differen than the smaller font.
2.22.2009 3:42pm
Angus Lander (mail):

The copy that customers receive is just the (marked-up) text, in Kindle format - same as before. The sounds are generated on-the-fly when the user presses the right button -- the sounds aren't "fixed" anywhere, i.e. they're not stored separately from the text itself. Therefore, no sound recording; therefore, no derivative work; therefore, no additional royalty revenue for the copyrightholder.

But, in a CD, the sounds are generated on the fly when the user presses the right button as well; they're generated by the interaction of the CD player's various gewgaws with the surface of the CD. Moreover, I'd imagine (though I have absolutely no idea what I'm talking about) that it's technologically possible to build a device that generates a musical score (or, in the case of books-on-tape, text) from the data on a CD. So the CD passes the same test for whether the sounds are fixed in it that the Kindle does -- "they're not stored separately from the text itself."

In short, Post's test has it that CD's aren't sound recordings. I don't know anything about copyright law, but that's a little counterintuitive.
2.22.2009 4:34pm
TruePath (mail) (www):
@Angus Lander:

Sure, you've succesfully argued that buying a CD gives you the right to play it. Indeed, this is a good argument for amazon: a right to the data in a CD gives you the right to electronically process that information to enable personal presentation thus it should do the same in the case of a book's text. A CD is a sound recording because it's the result of recording a sound not because it creates a sound as a derivative work.

The conclusion that you seem to be looking for is that the CD itself isn't a derivative work (presumably of the song it records). This doesn't follow at all because the CD itself is a place the sound recording is fixed.
2.23.2009 3:01am
Notwithstanding moral outrage, fixation is the legal issue and MAI v. Peak hints that the sound bits that exist for a transitory period in the Kindle are the difference between this purportedly infringing copy/derivative and reading aloud. I hope they litigate and kill MAI dead.
2.23.2009 11:21am
Tony Tutins (mail):

A CD is a sound recording because it's the result of recording a sound not because it creates a sound as a derivative work.

A data stream that actuates a Kindle is a set of instructions like a piano player roll.
2.23.2009 12:44pm
Angus Lander (mail):

I see. So Copyright Law says a sound recording is "fixed" in some storage device just in case part of the explanation for why the device can play the recording is that someone / something external to the storage device actually made the sounds?

In that case I'm mistaken. Thanks.
2.23.2009 4:07pm
TruePath (mail) (www):

No, a sound recording is fixed in some storage device if the information from that sound is encoded in the device. It doesn't matter whether it can be played back or not. I still have a copyright interest in a recording encoded in a format that can no longer be read.


Hmm, on second thought I may have misinterpreted your argument. I took you to be talking about what makes something a recording of a particular work when what you obviously meant was when it counts as a "sound recording" rather than some other kind of copyrightable work.

Still, I don't see the relevance. Are you trying to argue that the raw text is a sound recording hence some kind of additional performance restriction applies?
3.1.2009 12:05am
TruePath (mail) (www):

Well here is a question I don't know the answer too. If I record some song and then the format I recorded it in fades from existance so it can no longer be played back is it still a sound recording?

If yes then I fail to see the connection between playback and being a sound recording. Seems to me this is more a question of the data encounded (fuzzily is it more like an encouding of air pressure over time or some data that could be performed in various ways).
3.1.2009 12:08am

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