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.

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?

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 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.

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.

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).

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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.

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.