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Why the Kindle 2 Should Speak When Permitted To

The Authors Guild isn’t a league of those opposed to readers reading more. I’m a member, and I’m no supervillain. Rather, the Authors Guild is fighting a multi-decade rearguard action to prevent the erosion of authors’ rights and royalties. Readers are getting caught in the crossfire as worlds collide: publishers, booksellers, Google, and authors.

The latest salvo popped up over Amazon’s Kindle 2. The revised electronic book reader includes a much-advertised text-to-speech option that reads material aloud in a fairly decent quality computer voice. You wouldn’t want to listen to it all day, except perhaps on a long flight or car ride, but it’s plenty good to get through reading a newspaper on a morning commute.

The trouble is that Amazon didn’t purchase the audio performance rights for the works the company sells on Kindle. Historically, rights for audiobooks, dramatic performance, and other renditions of a printed work are separately reserved and discussed in author contracts. An author may sell one form of work to one publisher, and sell other rights in other ways, or retain them for their own distribution. A publisher might buy a bunch of rights and separately sell them to other groups.

The Authors Guild said it was looking into this topic, and suggested its members make sure their contracts were in order regarding what rights they assigned for electronic books. Executive director Paul Aiken maladroitly told the Wall Street Journal, “They don’t have the right to read a book out loud.”

This resulted in the Guild being immediately lambasted in a variety of specious ways by essentially well-meaning folks. Some claimed that the Authors Guild was asserting reading a kid’s book aloud at bedtime was “public performance” and would require a fee. It just shows you how hot tempers flare. In context, Aiken was referring specifically to the Kindle 2’s feature.

Amazon pulled back on text-to-speech reading after only a few days, stating that the Kindle 2 will be modified to allow a per-title permission for text-to-speech reading based on a publisher’s preference. That move didn’t silence the debate, though.

While some may accuse the Guild of trying to extract money from unsuspecting users, I find that Amazon’s position is as both a licenser and an enabler for users. If publishers want to sell content to readers directly for a range of devices that can all read the same format or formats, that’s very different from Amazon’s closed store, direct rights’ purchase, and bundling of different kinds of features into one device.

Braille Kindle? — An organization representing visually impaired Americans, the National Federation for the Blind, assailed the Guild’s statements, noting that the Guild was “advising its members to consider negotiating contracts prohibiting e-books to be read aloud by the new Amazon Kindle 2.” Not quite. The Guild was suggesting that as long as Amazon was buying one right and selling others, that Guild members should explicitly reserve this right. In essence, the Guild wants Amazon to pay for (or at least have) the rights they’re selling.

The NFB’s criticism was odd in other ways. The right for assistive devices to allow visually impaired people to access information protected by copyright without violating rightholders’ interest is enshrined in federal law. Plus, the NFB failed to note that the Kindle 2 isn’t designed to be accessible by the visually impaired; the group might talk to Amazon about that.

(And, by the way, if a special Kindle 2 were issued to those without sight, federal law would allow the device to speak the text, regardless of rights, just as existing reader software and hardware does. Radio stations operate reading services for the blind on special subcarrier stations, which require a tuner that, by law, you have to be certified to obtain and use. Readers speak aloud newspapers, magazines, and other materials.)

The DRM Argument — People opposed to digital rights management, which locks up media preventing personal use outside of devices that a given DRM-protected seller authorizes, took exception in another way, saying that the Guild was trying to buy into the notion that users aren’t allowed to do what they like with media they own.

But I’d argue that’s not the issue with Amazon and the Kindle 2. Authors and creators should have the right to control how their works are disseminated and transformed. The issue with DRM is whether you can “legislate” that control, through encryption, closed systems, and laws that prevent breaking the encryption; or whether explicit licenses should be enforced through more typical means, like lawsuits and restraining orders and so forth for violations of copyright.

I’ve long argued that DRM was an unnecessary measure because it’s so easy to circumvent. If you can watch, read, or listen to something, you can get around the DRM. The issue was how people, owning unlocked material, would misuse it or not. The explosion in unprotected music and the transition of the entire digital music industry to DRM-free sales shows that giving people the option to play music on any device they own doesn’t result in all music being free everywhere and never purchased again. (Essentially all music is already freely downloadable, thus it was already a de facto situation.)

However, making copies and playing music on multiple devices doesn’t transform the music. Let’s take it a step further. What if you wanted to transform the music you purchased? It’s in MP3 or AAC format, and there are plenty of audio editors that would let you mash-up, change the tempo, or overlay tracks. You might even scrub the vocals, and run a song underneath a video you created and uploaded to YouTube.

That’s all well and good. The software you would use for this purpose is general-purpose software that’s not marketed for the purposes of creating new music rights. Until you upload to YouTube, you’re making a new work for personal purposes, and there’s little or no law that could reach out and touch you for that. (Once you upload to YouTube, the video could be removed because of the audio you used, if someone notices and cares, but you’ll likely face no legal repercussions.)

The company that sold you the digital music track isn’t marketing the track or delivering it to you in a way that allows or encourages some kind of transformational power, nor does it lock the playback to a software that they distribute.

Contrast this with Amazon and the Kindle 2. Amazon is purchasing a license from a publisher or author to sell the right to read a book in digital form. Amazon uses DRM, so Amazon controls the playback, locking reading to a Kindle 2’s screen. When Amazon marketed the Kindle 2 initially, one of the ballyhooed features was text-to-speech. People were buying the device and downloading books and other media with some expectation that they could get audio versions, however clunky, of what they bought.

This is the crux of the matter. As Authors Guild president Roy Blount, Jr., wrote in a New York Times op-ed piece, “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.”

Blount and the Guild aren’t asking users to pay an audio tax, nor are they asking users to forego text-to-speech. The question is whether authors get paid for this right, which they’ve traditionally owned, or if this isn’t a new right at all.

A Twist on the Situation — Here’s where I may diverge from the Guild’s position in the future. I would argue that if Amazon were selling the Kindle 2 as a generic text viewing device that could display PDFs, text files, and other documents, and that also had a text-to-speech capability, but wasn’t specifically operating a bookstore and marketing the audio feature, there wouldn’t be a debate here.

If you could purchase or otherwise acquire books and documents from a variety of sources, I can’t see how any sensible party could argue that text-to-speech reading of works on that device constituted anything but a personal transformation of the work. (The Guild hasn’t asked, for instance, that text-to-speech be disabled for your own documents that you transfer via USB or via Amazon’s fee-based wireless service.)

In that case, the user chose to listen, the device’s seller facilitated that without being engaged in rights purchase or management, and the text’s rightsholder sold the work in that format with the full knowledge that individuals might do things with the work for their own purposes. They might, in fact, charge more for the work because of the expectation that it would be used in more ways and more widely read.

Back in 2002, I joined a model lawsuit initiated by the Electronic Frontier Foundation along with four other plaintiffs to counter efforts by the film and television industry to restrict the time-shifting and space-shifting features of the ReplayTV.

The issue there was that the 29 defendants had sued the firm that made ReplayTV, a digital video recorder like a TiVo, because the company had embedded an intelligent commercial skipping algorithm, and a method of sending recorded programs among a set of registered devices. One media executive made the claim at the time that viewers were required to watch commercials, although bathroom breaks were permissible.

My defense of ReplayTV might seem at odds with my support of the Authors Guild. However, so far as the Guild has made its case to date, I’m entirely consistent.

ReplayTV was designed for a variety of purposes, some of which could potentially infringe on a creator’s rights, but most of which did not. Likewise, the recording industry made a few lunges at the iPod in the first few years after Apple released the player, stating boldly that the device was almost entirely focused on infringing uses. That argument didn’t hold.

The Kindle 2 is much like the iPod. However, the particular feature that the Guild has singled out is designed only for infringing purposes, if you buy the argument that the user isn’t violating the law in using it, but rather that Amazon is tiptoeing around obtaining a license for a purpose other than the one that they told publishers the Kindle 2 was going to employ.

(I may be wrong here about the specifics involving Amazon contracts. I have heard nothing from publishers that said that Amazon explained the text-to-speech feature before the Kindle 2 was formally launched. Amazon may also have the right to use text-to-speech in some explicit fashion in some of their contracts.)

This would be much like if you bought a ReplayTV that had a number of ways to record programs, delete the commercials while recording broadcasts, send them to different devices on your home network, and act as a peer-to-peer distribution client for any program on its hard drive.

You’d have no support from me that the first three tasks (recording, stripping ads, or personal use space-shifting) were illegal. The commercial-stripping option might have a case for or against legality, but if it’s set up clearly as something a user has to trigger and choose, no dice. However, the last use, uploading files for sharing, would clearly be out of contention even if the rest of the device were just fine.

As an author, I have no interest in withholding any rights that get people to have more access to my work. As a reader, watcher, or listener, I want the most flexibility in how I use the media I’ve purchased in any form. As a technology geek, I like the expansion of anything that lets people be more creative and be exposed to new ideas in interesting ways.

The resolution isn’t authors and publishers blocking rights, Amazon turning off features, or users turning away from the Kindle. Rather, it’s about allowing rightsholders to have a say in how their work is used when they license that work for a particular purpose.

Harkening Back to Google Book Search Settlement — A similar set of issues came up over the last few years in an Authors Guild lawsuit, in which the Association of American Publishers and other parties were involved in suing Google over the Google Book Search program. Google was scanning millions of books, performing optical character recognition on the results, and making limited search features available. (See “Authors and Publishers Settle with Google Book Search,” 2008-10-29, for more background.)

Google said that merely scanning and storing complete images of in-copyright works didn’t violate any rights, nor did presenting “fair-use” snippets of results from the books. Google’s stance was that this in fact encouraged sales. The Guild and its co-plaintiffs argued that there were no rights at all for Google’s behavior.

To settle the lawsuit, Google agreed to pay tens of millions of dollars to authors and publishers for books scanned, open the way to make available millions of more books that are in a limbo state, and to provide fully agreed-on, compensated access to millions of in-print books.

This seemed like the optimal outcome, especially for readers, who gain access to a massively larger pile of reading material, and researchers for whom books locked in stacks will suddenly be available on their desktops. Authors and publishers get paid. Google makes money from ads and sales commissions.

To bring this back to the Kindle situation, the lesson from the Google Book Search settlement is that each author, or each company to which an author has assigned rights, is always making choices about derivative works. The specific case here with the Kindle 2 is that Amazon purchased one right and is trying to gain revenue by selling implicit additional rights.

I don’t know whether, if this Kindle matter had reached the courts, the Guild’s position or Amazon’s would have prevailed. Julian Sanchez at Ars Technica examined the legal position quite evenhandedly.

It’s entirely possible that Amazon would have prevailed, and it’s likely that this would have cast a pall over electronic books, because audiobooks represent a $1 billion per year industry – one that Amazon participates in directly, thanks to its purchase of Audible, the leading online audiobook seller. (Amazon’s ownership of Audible, which has purchased audio rights for all the books it sells, makes Amazon’s initial position a bit bizarre, in fact.) Publishers might have chosen not to license works at all on devices that had text-to-speech capability to avoid giving up one lucrative market in favor of a currently unproven one.

Amazon only acknowledged that it might be better to put authors and publishers in the driver’s seat when it comes to choosing which books can be read aloud by the Kindle 2 and which cannot. This move, without Amazon giving up its position that it had the legal right for text-to-speech reading, still has the effect of making creators comfortable with the notion that as new devices appear, they can expect to talk with device makers and content sellers about what text can and can’t do in this new world.

For now, it seems to me that technology, readers, authors, and Amazon are all well-served. While sites like the Consumerist ran headlines such as “Amazon Allows Publishers to Kill Text To Speech Function on Kindle 2,” the reality is that authors and publishers want to have works widely distributed and read, but to have the choice to embrace all technology or some of it – and be paid for that which they embrace.

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