The post title is taken from Roy Blount Jr.’s NYT Op-Ed entitled “The Kindle Swindle?” In it he argues, in his capacity as president of the Author’s Guild, that the Kindle 2 will undermine the market for audio books, which provide a decent amount of income to authors. He writes: “What the guild is asserting is that authors have a right to a fair share of the value that audio adds to Kindle 2’s version of books.” He points out that the Guild is therefore being accused of persecuting blind people (even though the Kindle 2 would be difficult for a blind person to use independently) and also:
The guild is also accused of wanting to profiteer off family bedtime rituals. A lawyer at the Electronic Frontier Foundation sarcastically warned that “parents everywhere should be on the lookout for legal papers haling them into court for reading to their kids.
I’m somewhat conflicted about the issue. One the one hand I think I should be able to use a book I purchase (or even “license”) any way I like. On the other hand, if the Kindle 2 truly poses a threat to the revenue streams of authors (though I’m guessing Blount is not going to provide any actual verifiable data on how many authors the Kindle 2 might effect, or how much money each might lose, or admissions that the Kindle 2 might actually increase the sales of many books, especially books that were unlikely to be released in audio form, thereby actually benefiting some writers) that does seem problematic. And I’m struck yet again by the corrosive rhetoric that EFF uses sometimes, which I don’t think is particularly helpful.
My problem with the Author’s Guild’s claim is that it seems to imply that they should be paid for any use of their works, regardless of whether that use actually violates any of their rights under the copyright act. Section 106 doesn’t give them “audio rights.” It gives them the right to public performance, which I suppose could be implicated here if we thought the Kindle’s read aloud function was being used frequently in public. And it gives a derivative right, which is only at issue here on a really expansive reading of that right. Just because reading them aloud has value, it doesn’t mean the authors get that value. But we’ve gotten to a point in copyright where copyright owners think they’re entitled to be paid for any use that has value.
Ann, I admit I don’t get it: what right of the copyright owner is infringed, at least by a private performance? Mechanically reading aloud using computer-generated sounds, like my GPS does, doesn’t strike me as creating a derivative work even if we spot the Authors’ Guild fixation. It is possible that this cuts into the audiobook market, though they aren’t very good substitutes for one another (reading by an actual human is a lot more palatable), but used book sales also plausibly cut into the new book market, and the Authors’ Guild has in fact complained about that, but copyright law quite sensibly tells them to lump it. (And as you note with respect to the Kindle, the existence of a used book market may also have positive effects on new book sales, at least of certain books.) Do you think there should be a new right? Or do you think this implicates an existing right?
I’m with Rebecca on this one. Peter Jaszi has a great posting in which he asks what exclusive rights are infringed by the Kindle? Unless there is some non-transient audio copy made as part of the text to speech process, it doesn’t look like reproduction. No fixation, so I don’t see distribution. Can you have a derivative work without fixation? And listening privately doesn’t seem like a public performance.
Let’s not go along with copyright owners when they suggest that they have more rights than the law allows. Their monopoly is broad enough as is.
Maybe the best solution is just to let the market solve – publishers can compensate for the loss of audio book sales by charging more for e-books. But then we will all pay the audio premium whether we want to listen to the Kindle 2 read to us or not.
I understand that the Kindle 2 doesn’t give a “public” performance, but I’m not so sure there isn’t a kind of reproduction being made that is more than ephemeral. Section 121 calls recordings for the blind “reproductions” rather than derivative works, for whatever that is worth. And if you can replay the book in audio form over and over on a Kindle 2, I think some judges would find fixation.
Not having heard a Kindle 2 read a book out loud, I can’t judge how good a job it does, but I do have a blind friend with a text reader and hers reads surprisingly mellifluously.
I have to admit that if it worked well. I’d love to have a Kindle 2 or similar product that could read books to me during long drives that are not available in audio book form. But I also have to admit that I have purchased quite a few books in both audio book and textual form over the years, so I think there would be lost revenue streams for some authors.
It would be an infringing act to record somebody else’s book without permission and sell the CD, and the Author’s Guild seems to feel this is analogous. I’m not sure I buy that, but something here makes me uncomfortable.
Would any of you think any differently about the issue if the Kindle 2 did a really, really good job of reading e-books out loud, over and over, as many times as the consumer wanted?
Has anyone bitching about this actually *used* the Kindle feature?? I don’t think so. Because I have. It’s not going to stop audio-book lovers from buying audio books. Not by any stretch. But even if it was an amazing, melodic voice, I still don’t think there is a copyright issue…
To be clear: there is not an audio version of the work on the Kindle. The machine does a real time text-to-speech each time it’s read. Unless you’re renting yourself out with your Kindle to do public readings for an admission charge, I don’t think having a device read aloud to you is a derivative work.
I think the Author’s Guild should take a tip from Neil Gaiman (http://journal.neilgaiman.com/2009/02/quick-argument-summary.html).
Mr. Blount needs to get a new job. It seems to me like he’s trying to find a new way to fleece the consumer. As a consumer, I’m tired of getting ripped off by the publishing industry. $30 for a new book? Give me a break. I can’t afford that kind of hobby –it would cost me $900 a year if it wasn’t for the public library. Everyone wants to be a millionaire overnight, especially at the cost of the working slobs and the consumers. Give me a break Mr. Blount.
-joe miklovic
Dave! – I already said I haven’t used the Kindle 2 audio feature, see above.
Also, no one in the thread thinks there is a pre-recorded audio version of the work on the Kindle 2.
Even if the ability to play the book in audio form over and over is not found to be fixation, not every judge requires something to be fixed to be infringing. Non-permissively performing a copyrighted play over and over without fixing any particular performance might well be held infringing, depending on the other circumstances.
I think Blount’s argument is that Amazon.com is trying to fleece authors.
I have no idea how much of the $30 cover price you cite actually goes to the book’s author, but based on some figures I’ve seen, it may be a dollar or less. I have no idea whatsoever how much audio books might add to a book’s revenue stream, and how much of that gets to the author.
So Ann asks if I would feel differently if the Kindle did a good job of reading books. I have confidence that in time the software will get to the point that the computer-generated audio will be very high quality (if not quite the quality that an actor could bring to reading the book). But I don’t have a problem with that. Authors have the right to license someone to make audio copies of the work. And there is the section 121 exemption that allows audio copies to be made for the visually impaired. But I don’t see that the Kindle makes any copies, so it is not in the same ballpark. And it is not like a play, because it is not a public performance.
What you are really asking is whether we should give authors a new exclusive right to privately perform works via technological means. That seems like a very slippery slope on which to enter.
I have to agree with Mark, Rebecca, Peter etc. — no infringement here that I see.
Also, from a pure policy point of view, isn’t it the case that publishers (or I suppose authors) lose out only if someone who bought a book for Kindle would instead have purchased both a print *and* an audio version of that book? My guess is that very few people ever do so. Similar arguments arose re: Google Book Search, of course.
Finally, Ann, I love you and your blogging, but having been accused of “inflammatory” remarks once or twice yourself, do you really think EFF’s rhetoric is “corrosive”? Exaggerated, sure. But sometimes isn’t that the best way to make a point?
Peter – I referenced plays with respect to the fact that an infringement can occur without fixation of the infringing performance. I didn’t mean to suggest that the Kindle 2 makes a public performance.
This issue is interesting because it pushes on what it means to make a copy. As a technical matter the Kindle 2 doesn’t make an audio copy, but if it can read the book out loud over and over in exactly the same way, it enables something copy like, anyway. I really don’t think I’m suggesting a “new exclusive right.” I’m suggesting that some judges might find this infringing of pre-existing rights, if there is market substitution.
Bill –
I agree that the market effects in terms of lost sales might not be huge. But it might be bigger than you think. Or maybe my friends and I are just weird, because we do it a fair amount, with children’s books and “book club” books.
I really think accusing the Author’s Guild of being ready to “hale parents into court for reading aloud to their kids” is a really unhelpful exaggeration. And maybe the Author’s Guild is wrong on this issue, but I don’t think they deserve to be falsely (as far as I can tell) accused of hating on blind people. These people are writers. Maybe they are puppets of the publishers, I don’t know. But if they are wrong, I think it’s enough just to point that out.
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