Roy Blount Jr., writer and president of the Author’s Guild, has a jeremiad in the New York Times about Amazon’s Kindle, and its ability to read books aloud. Blount thinks that is a violation of authors’ rights. After giving some thought to his argument, I can only conclude that Blount should stick to sports, because he’s pretty confused about copyright.
Amazon, Blount says, “is not paying anyone for audio rights.” Likely true. But, um, what rights are those? Copyright gives an author five entitlements: to reproduce copies of the book, make derivative works based on it, distribute it, perform it publicly, and display it publicly. So, let’s take them one by one. If an ebook is available through Kindle, Amazon (presumably) has the right to distribute the book, which also entails letting the end user (consumer) make copies of it. Copies: one that’s stored on the Kindle’s hard drive, and one that is loaded into RAM for display (and, perhaps, the on-screen display itself). “Displaying” a work via audio doesn’t make much logical sense, so we’re left with either public performance or derivative works as rights that the Kindle treads upon.
Is the reading a public performance? Well, let’s take Blount’s example: “the Authors Guild does not expect royalties from anybody doing non-commercial performances of ‘Goodnight Moon.’ If parents want to send their children off to bed with the voice of Kindle 2, however, it’s another matter.” While playing “Goodnight Moon” is certainly a performance, in my experience few children have bedrooms that qualify as public. What’s “public,” for copyright purposes? One of two things: it’s performing it “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered,” or to “to transmit or otherwise communicate a performance or display of the work to [such] a place.” It may take a village to raise a child, but rarely is one involved in putting her to bed. So, public performance is out.
What about a derivative work? Well, the definition of derivative work is amazingly broad: it is any work based upon an existing work. I wonder, though, about two things: fixation, and added expression. Technically, derivative works don’t have to be fixed (unlike the requirement for copyright protection initially), but many courts read in a fixation requirement to the statute. I don’t know how the Kindle converts text to speech, but if it fixes it, it probably does so by buffering only a few words at a time, which likely isn’t enough to infringe (either because it doesn’t copy enough of the protected work, or based on fair use). Second, does reading a work aloud create a derivative? Again, the standards are minimal, and vary by Circuit: the 7th requires added originality, while the 9th requires that the work be recasted, transformed, or adapted. I’m not sure reading aloud qualifies under either of those tests, no matter how much personality Kindle’s fake voice offers. Moreover, this seems like a classic case of overlap: if reading aloud is a derivative work, it seems that the derivative works right renders the public performance right superfluous, which is in tension with our standard canons of statutory construction.
Even if we assume that the Kindle fixes an entire copy of the ebook as part of its text-to-speech conversion, is that a violation? After all, Amazon is allowed to make several copies of the ebook already (on the hard drive and in RAM, remember), so what’s one more? That’s really a contract issue that depends on the agreement between Amazon and the copyright owner (author or publisher).
Blount’s argument is, at heart, one that sounds in John Locke’s labor-desert theory: Amazon has created new value, and likely new demand, for authors’ books, and so they should share in the reward. But why? Amazon did the hard work here, and the Kindle is probably going to be a huge driver for sales of books generally. Authors already have incentives to produce books. Won’t taking away some of Amazon’s returns reduce incentives for future innovators? Here’s a thought experiment: I invent a new way to make an existing product even more worthwhile — say, I write a software program that makes Windows incredibly simple to use, or a way to make Spam taste like sirloin. Sales of Windows, or Spam, are going to go up. Should I write a check to Microsoft or Hormel? Obviously not. So, why is it different just because we’re throwing copyright around?
This is a land grab. It’s ill-advised. Blount’s argument is wrong as a matter of copyright law and just plain dumb as a way of relating to a product that will make authors richer. Better head back to the locker room, Roy.