Know Your Rights: Does the Kindle 2's text-to-speech infringe authors' copyrights?
By Nilay Patel 
posted February 11th 2009 2:38PM
posted February 11th 2009 2:38PM
Know Your Rights is Engadget's technology law series, written by our own totally punk ex-copyright attorney Nilay Patel. In it we'll try to answer some fundamental tech-law questions to help you stay out of trouble in this brave new world. Disclaimer: this isn't legal advice, but it is best read aloud by a text to speech app.
Hey, so does the Kindle 2's Read to Me text-to-speech feature really infringe on authors' copyrights?
It's nice to be back! It's been a while.
Yeah yeah. Get to it.
Okay, so the issue is that the Kindle 2's Read to Me feature obviously threatens the audiobook market, and while at first blush it seems like the Authors Guild has a pretty weak case when executive director Paul Aiken says things like "They don't have the right to read a book out loud," it's not necessarily as ridiculous as it seems.
Yeah, that's totally ridiculous! Wait, what?
Well, think about it this way -- once you get it on the Kindle 2, an ebook can serve as both a regular book (that you read) and a recording (that you listen to). What the Authors Guild seems to be saying -- in a totally backwards and potentially inaccurate way -- is that while Amazon has the rights to sell you the book, it doesn't have the rights to sell you the recording.
Are you seriously saying that I don't have the right to read a book out loud? Girl, you crazy.
No, you absolutely have the right to read a book out loud -- but you're not allowed to make recordings of yourself and sell them. That's something only authors are allowed to do, and it's hard to have a problem with that. You'd be pretty miffed if someone started selling recorded versions of your blog without compensating you, wouldn't you?
But the Kindle isn't playing back recordings -- it's synthesizing sounds based on the words in the book! Isn't that just a private reading?
Sure, and a MIDI piano isn't playing back song recordings, it's just playing notes from a file that sound exactly like the sound recording, right?
This is actually pretty tough stuff -- as far as edge cases go, this one pushes right up against the boundaries of the current law. On one hand, you definitely have the right to read books that you own out loud using whatever tools you want, and on the other, authors definitely have the right to prevent others from selling audio versions of their works. The Kindle's text-to-speech feature blurs the lines between books and recordings, and that means those two rights are in conflict with each other.
Come on, text-to-speech has been around forever! What's next, suing Apple for MacInTalk?
It's always gotta be Apple, doesn't it?
Answer the question, smartass.
Well, sure, you can buy ebooks and play them back using OS X's text-to-speech voices. But here's the thing -- no one really does that, so no one cares. The Kindle is the first major text-to-speech device that could impact audiobook sales, so it's not surprising it's the first to garner this kind of scrutiny. Remember: just because someone can file a lawsuit doesn't mean they have to.
Okay, but who's honestly going to choose the Kindle's computer voice over a real person reading an audiobook?
You're right, nothing's ever going to compare to a real live person reading to you, but it's not like technology ever stops progressing -- while the Kindle 2's voice isn't the best, we'd bet almost anything that the Kindle 5 or the Kindle 10 will be more than adequate for a lot of people. Remember, people happily listen to 128kbps MP3s through crappy iPod headphones all day long -- eventually the quality tipping point will come, and the Authors Guild is just trying to protect its own before they get totally bowled over.
So basically Amazon just has to pay up?
Well, maybe -- it's not exactly terrific public policy to say that text should be considered a recording as well, especially given the prevalence and intrinsic value of computerized text-to-speech. We'd say that means Amazon should fight this one out, honestly, but that doesn't mean Jeff Bezos won't just cut a check and make this all go away for now. You can do that when you're Amazon.
Look, just make this easy for me: who should I flame in comments? That's all I really need to know.
Doesn't matter -- we read everything back in the OS X "Princess" voice anyway, tough guy.
Thanks again to Matt Gavronski of Michael Best & Friedrich for his assistance!
@ Nilay: This was really informative. I had a couple questions. In terms of ADA, what does law/case law say about accessibility of devices? If Amazon really does lock down the Kindle's software to the point that others cannot develop software for it, are they required to make sure there is software for accessibility? I imagine there are tech-savvy visually-impaired people who buy ebooks online and have their screen readers read them. Is there any reason why this would be substantively different?
Essentially, I'm wondering if ADA and IP law are coming in conflict with each other here.
Also, since the screen reader is essentially equivalent to a human reading a book aloud, would the Kindle 2 implementation (as is) be any different from a private performance? I'm thinking of parents reading to their kids here, or a language learner trying to master a language.
Finally, about audiobooks. Is there any case law that says what we pay for when we buy audio books? Are we buying the words themselves or performance of them? I believe that with music, we are buying a licensed performance of the work for private use. Is there anything that indicates that audiobooks are not classified the same way?
Didn't read the comments but here's my view on this.
The issue here is not that users are buying the books and using text-to-speech to listen to them. When people are saying "I paid for it, I'll consume it any way I want", that's true as far as I'm concerned.
The issue here is that Amazon is basically giving away "audio books". By selling e-books for a device (their own device that they also sell, that's important) that has text-to-speech, they are basically selling the e-book plus the e-audio-book, but aren't charging anything for the audio-book. It's sort of like if Amazon gave a way for free a novelization of a movie when people buy the movie dvd - novelization is just a book describing the actions in a movie, one could argue it's just another way to consume the movie. And in fact, one could theoretically create an auto-novelization algorithm - if you have AI smart enough to recognize actions and speech in the movie you could do it. However, of course those books are a separate product. And I think this is the case here.
Is there even a copy being made? I don't see fixation, except perhaps in the device's RAM. If there's no copy, then this use would be protected either by non-infringement or the first-use doctrine.
Copyright law also applies to "public performance" of a copyrighted work, and a copyright holder also retains at least some rights to "derivative works". I'm sure the lawyers would angle in one of those directions.
Regarding derivative works, there were a few companies that tried different approaches to providing Bowdlerized versions of decidedly family-unfriendly movies on DVD. One approach was for the company to copy and edit the DVD to remove the objectionable scenes, burn the result to a DVD-R, and sell the DVD-R to the customer, while purchasing and retaining a legitimate copy of the DVD to compensate the copyright owner for having done this. The other approach was to make a special DVD player that can automatically skip over objectionable scenes in movies by following a downloadable "edit decision list" corresponding to the DVD.
A court found the first approach to be copyright infringement. The edited copy was ruled to be a derivative work. (Never mind that it was also in violation of DMCA, which makes it illegal to circumvent copy protection even in the pursuit of making a legal copy.)
The second approach was specifically legalized by Congress in the Family Entertainment and Copyright Act.
It seems to me that Kindle is in the same vein as the second approach. Amazon isn't selling a recording, they're only selling a device that can read the eBook aloud. But maybe it will take another act of Congress to make this clear.
If they successfully sued Amazon over text-to-speech, then if I were the head of an organisation concerning disabilities, I'd sue Amazon AGAIN for not providing visually-impaired users with an alternative.
Surely Amazon can argue that without text-to-speech they are complying with some W3C-style accessibility standards? Isn't that an important argument?
WHAT THE F.... is this???, audiobook market???? do you, Idiot, know who is the owner of the biggest audiobook website www.audible.com????? HELLOOOOOOOOO!!!!! IT IS AMAZON. So what you're saying is that Amazon is fuc-king itself.
And am I the only one who finds Nilay's response to put the text-to-speech comment online a moot point? He copied the text-to-speech. Kindle is only reading it out. If someone decided to make copies of the audio THEN they'd be in breach of copyright.
Sorry but when I meant disability, I really meant accessibility.
"said", not meant. Oh crap, I think it's time for bed.
Then my GPS is violating copyright law by reading maps to me too??
I'm confused as to how the Author's Guild thinks they're going to be losing money with this technology. Isn't it fair to assume that most people don't own a print version and an audio version of a book? Why would people buy both the digital text version and the digital audio version? They should be happy about the Kindle since it gives book consumers more options, hence it is likely to lead to an overall increase in book sales, no matter whether they're reading or listening.
I've never bought a digital book before, so I don't know what they cost. I imagine Amazon could slightly raise the prices (or eat the cost) of paying a small fee per digital copy sold on their site, though I still think that the Author's Guild should be bowing down before Bezos and Co. for popularizing a modern version of an old, waning medium.
I don't believe the arguments of the Authors' Guild are valid. How many people buy both the printed version of a book AND the audio version? Almost none I suspect. Kindle's speech application shouldn't be seen as cannibalising either book sales or audio sales, but instead combining them. All it means is that the people who want to read a book and the people who want to listen to a book will simply buy the same product rather than two different ones. It also brings an additional price point to the audio sales. If you want to hear Stephen Hawkins read the book, just buy the standard Kindle text version. If you want to pay a premium to hear Morgan Freeman read the book, you'll probably still be able to purchase the CD/mp3.
Sounds as if some ass hole lawyers that want to get sue happy about text to speech being an "audio work of art" are on engadget. You guys should get a life, really
This is ridiculous. My father is blind and has scans books he buys himself so that TTS software can read it to him. He has been doing so for over a decade. Some books are not available in audio format (particularly non-fiction technical books) and this is the only way he is able to read them. The OCR-TTS software can also export to MP3 or Daisy format, which he copies to his portable audio player for reading on the go.
If converting book formats has suddenly become illegal, what happens to these technologies, which are vital for visually impaired people who cannot read printed text? Are they just supposed to stop reading altogether? This is just plain bull. Amazon's move is one aimed towards accessibility and giving people who understand better through sound than sight the opportunity to read the same books.
I like the new kindle.. most don't but it is definitely an upgrade in look from the old one. It would have been better if they would have added some more features. Price is still ridiculous.. check other rates
Here's my question. Since this whole text to speech thing has been around forever, and can be done on any computer, and no author or publisher that sells digital versions has ever filed a lawsuit, would that mean that they didn't protect their copyright from known infringement thereby losing their right to try and protect it now from the exact same thing?? Couldn't Amazon go to a court and ask for a ruling pre-preemptively invalidating any claim brought by any author or publisher that previously allowed their works to be sold in any digital format? And what about the ADA and the blind and accessibility?!? All kinds of issues that good ol' Nilay didn't even touch on....how about it Nilay??? Some further insight please?????
so people who are blind and require software to read text to them are infringing copyrights too?
man is stephen hawking screwed
"the point behind the copyright laws is to allow an author to exploit every revenue stream available from making his book. This gives people an incentive to write more books because, like it or not, most people write books for MONEY."
The point of copyright is to promote the arts and science for the public good whether the artist or scientist makes money is irreverent
"Sure, and a MIDI piano isn't playing back song recordings, it's just playing notes from a file that sound exactly like the sound recording, right?"
This is where the silliness of the whole thing seeps in through the cracks. The only author these TTS engines can reasonably sound like is Steven Hawking, and I don't think he'd mind in the least.
I don't see why a visually impaired man couldn't use the text-to-speech feature and have to pay an extra for it.
The Authors Guild: We hate the visually impaired.
What exactly do the authors wants? What are they losing? There are people that buy books. There are people that buy audio books. Are they trying to protect the market of people that buy both the text and audio version of the same book? I would be really curious to see the financial 'loss' from losing that market.
it is stupid idea. I buy "letters" and my device read the letters for me. The same as milion readers over the market. If this would be forbidden, then you would have to forbid also the voice readers for the blind people. But maybe i do not understand the point - if Amazon do not sell "letters", but an mp3 of a book, than i understand it violates rights, doesnt matter if the reader is live or digital (as it is anyway always digital record)
I got one more idea for them - they should also ask for movie rights fees, for every music or book, if you got some visualisation synthethiser (e.g. default in windows media player) - because in that case you can use also your eyes and watch the video synchronised with audio. Yes, it is a computer generated video but if they do not care ...
I just wanted to add that copyrights have gotten out of hand. It is ridiculous that a copyright is somehow considered more valuable than a patent. At least patents generally improve our lives in terms of greater functionality. Copyrights are intellectual property, and odds are many people before and after the author have thought of the exact same thing, or at least something similar. So what gives these authors, and more importantly, gigantic entertainment companies, the right to charge people indefinitely for the "privilege" of enjoying the material. There is no logical rational behind it. It is nothing more than lobbyist' and self-interested politicians pushing something through that does nothing good other than lining their own pockets. So I can invent an artificial heart, and in 15-20 years people can "steal" my design, one that saved countless lives..? But then "Joe Bloe The Under Achieving Drug Using Musician Child of Liberal Parents" writes a song that while sounds great, sends a horrible message out to our society, and no one can ever reproduce this without paying royalties. Ridiculous.
Would it be wrong then to scan the book, OCR it, and have MacInTalk read it to me?
From what I can understand, the sound quality would be similar. I would hate to have MacInTalk read to me in that voice. Lack of emotion.
Part of the reason people buy Audiobooks is to hear it told as a story. The text-to-speech lacks that emotional quality that only a human voice can relay.
"Sure, and a MIDI piano isn't playing back song recordings, it's just playing notes from a file that sound exactly like the sound recording, right?"
Nilay, If you think MIDI playback of sheet music sounds like _a_ recording made using real musicians, your ears must be made out of wood. Same if you think text-to-speech sounds like an audiobook.
I agree. Case in point: the excellent audiobooks of the Harry Potter series, read by Jim Dale. (Anybody remember "Hot Lead & Cold Feet"?)
Two thoughts:
1) While it doesn't count for much in the court, there's plenty of public precedent to allow text-to-speech. I have a friend who is blind, and he has a device called a Kurzweil Reading Machine. It's a scanner that does OCR and talks. These have been around for more than 30 years, and the Authors' Guild has never tried to shut them down.
2) These are the same people who also rail against the used-book market, saying that we need new laws to ban the sale of used books because its takes money out of the pockets of the authors. We've had the right of first sale acknowledged for more than 100 years now. These people are not your friends.
The Authors Guild is the RIAA of the written word. They are not there to represent the interest of the authors, and they are certainly not there to represent the interest of the readers. At best, they exist to represent the middlemen, the publishers. They should be put on the same boat with the RIAA and MPAA and sunk deep at sea.
thats just crazy its like saying screen readers infringe copyright yet they are used for accessibility reasons just the reason behind this very feature.
I think the authors guild need their head restructuring.
Comment from a Spanish speaking forum:
"I still don't understand why they talk about intellectual property or author's copyrights when what they mean to say is commercial exploitation rights. It would be like saying that P2P networks are putting copyrights in danger, no they aren't! or has anyone ever tried to take credit for any kind of work or anything just because they got it from emule?"
I for one am glad no one has made a joke about listening to A Brief History of Time on the kindle 2,
although I'm sure someone will. It's only a matter of time and space.
Neil Gaiman has given his two cents on the issue:
http://journal.neilgaiman.com/2009/02/quick-argument-summary.html
"My point of view: When you buy a book, you're also buying the right to read it aloud, have it read to you by anyone, read it to your children on long car trips, record yourself reading it and send that to your girlfriend etc. This is the same kind of thing, only without the ability to do the voices properly, and no-one's going to confuse it with an audiobook. And that any authors' societies or publishers who are thinking of spending money on fighting a fundamentally pointless legal case would be much better off taking that money and advertising and promoting what audio books are and what's good about them with it.
There."
I want to see the disabled Americans organizations go after this one. The Writers Guild is saying blind people have no rights to use a kindle.
Robert
First off, this is one of the worst articles/interviews I have read in a while. It barely passes for a conversation, even. What it accomplishes is only an introduction to a potential issue....
That said, and having read 1 of 4 pages of comments: I wonder if anyone's thought of the implications of text-to-speech being considered a recording. This needs to be considered a data processing application and nothing more. To consider it a recording in any way at all (outside of the obvious fact that it's not a recording but rather processed data) could legally and financially render the text-to-speech market dead. If I were to have my computer "read" this page to me, then I would owe Engadget money for that reading, yes? And I could extrapolate on this.... But I'll stop, for it is a large issue, and possibly of merit to finalize that text-to-speech is data processing and not a recording. Sure it'll eventually compete with audio recordings... in the same way that book publishing competed with the hand-written book... and that all books competed with live performance, priorly the only means to tell a story...
First up, confession time - I'm one of those pesky author sorts... Right, now that is out of the way...
One of the things that isn't being mentioned as far as I can see is the way the sale of rights works in publishing, for instance I can sell FNASR (First North American Serial Rights - or the right for the company to make the first printed version of the story in North America) I can sell FBSR First British - and these can go to different companies, so the American publisher isn't allowed to distribute their product in the UK as it is against the competitive agree they've entered into. I can sell Graphic Novel rights, Reprint Rights, World English Language Rights, Audiobook rights, movie rights... etc.
Now the stickler here really is that Publisher A may buy the FNASR for the novel while Publisher B may buy the audiobook rights... but if the Kindle (for which the author has sold electronic rights NOT FNASR) can speak well enough to convey entertainment from the electronic edition, owned by Publisher A that's impacting upon the rights secured by the audio company which in this case is a completely different company...
It's a bit messy - and the whole thing is markedly different to how the music business is set up in terms of rights. Rights to a hardcover edition are separate to rights for a mass market paperback, for instance, so the argument I bought the cd, can't I rip it onto my mp3 player are slightly different here. The end consumer can pretty much do anything he wants to, but the publisher isn't allowed to produce a hardcover if he doesn't have the rights, or an audiobook if he doesn't have the rights... so I would suggest what is going on here is that the text to speech option if available for all could well be viewed as an audio book - thought not a full production, of course... but then we get back into that vicious circle of who bought what rights...
I know if I was publisher B and had the audio rights I'd be really worried what I'd paid for was being duplicated by someone else for free...
How does it impact me as an author? Well, possibly Publisher B may stop purchasing audio rights so I might lose that income, or Publisher A will start demanding those rights in a normal contract offer, meaning they are grabbing more than they were previously able to. Do I want the blind to suffer? Of course not, and there are multiple programs available across the world to provide audio versions for registered blind people, just as if a product is audio only transcripts are available for the registered deaf.
Equally it is important to remember that this is the Author's Guild protecting the rights of the individual writers. We don't have the strongest voice against the multi-million corps, but in this case I don't think the AG are being money grabbing or greedy but fighting to ensure that the rights demarcations remain clearly distinguishable. It really isn't about reading to your child in bed, or listening to a story time at the library (and just an FYI but in England we have something called Public Lending Rights which mean that every time someone borrows a book from the library the author gets paid a little over 5pence (about 8c on current rates I think). It's not a lot of money but over a year it adds up.
The thing is, it looks like the AG is going after the final consumer, trying to stop you copying things you paid for, but that really isn't what this is all about.
Now, here's the other thing, like most writers, I want as many people as possible to read and enjoy what I write. But... you knew there was going to be a but, right? It is my sole source of income, so it pays the bills. I want to sell my work in the way that best benefits my family. I'm obviously hoping it falls that both markets continue to exist, audio and electronic rights as separate packages because the little money I make off audio could be the difference between paying the mortgage one month or not. But if it doesn't the amount of money I lose is minor compared to the voice talent, the recording engineers etc who make the audios....
It'll all come out in the wash, of course... I just wanted to make a point that it really isn't just a case of 'oh those greedy authors' as has been mentioned a few too many times up there.
Steve
For those that say an audiobook is NOT a performance, why do the Grammy's have an award for audiobooks (Obama won one for Audacity of Hope)? It IS a performance.
For the toast analogy, If Wonder had the exclusive rights to bread in general, and sold toasted bread at a HIGHER price, then all of a sudden a company came in that made a toaster, THEN Wonder might have a case against the manufacturer of the toaster. Can Jamba Juice blame blender companies that make smoothies at home? The list goes on and on. A book though, the author has EXCLUSIVE rights to his work, so if they're cutting into his audiobook sales, he has every right to sue.
I think a fair solution would be for Kindle to sell the audio portion of a book at a lower rate than the actual audio book the same way it sells ebooks at a fraction of the cost of a real book. Fair is fair. If you buy the Audio portion, then Kindle would play the audio file, if you DON'T but it, then Kindle would "deactivate" that portion.
So all those people who buy audio books and of course the text book as well are now likely to shun the voice actor's dulcet tones in favour of text-to-speech?
This is the most ridiculous thing I have heard since at least the last lawyers take on rights issues.
Personally I think text to speech on this device is largely a gimmick what will be barely utilised by the majority of its users.
you guys are taking this too obscurely. it is not illegal to read a book out loud, as it is your book. if the authors guild logic would be sound it would have to be illegal to read the book out loud under any circumstances. Because having you parents read you a book with personality hurts the audiobook sales, why do they need an audiobook when they have a parent. kindle is merely acting as your reader. kindle does not charge a profit for reading you a book, you only buy the device.
writers are starting to show their greed and this will only hurt them in the end.
just as the cd fell. so shall books