Ex-default for Kindle 2 text-to-speech: Legal?
Amazon yielded to the inevitable on Friday when it announced (in this statement) that it would no longer enable the text-to-speech feature on its Kindle 2 e-book reader by default; publishers can make the call.
Instead, publishers may enable the text-to-speech feature on a title-by-title basis, if they believe that choice is in their best interest.
Amazon's Kindle 2 e-book reader
(Credit: Amazon.com)I have been sorely tempted to write a response to some of the factually incorrect and even grossly deceitful pieces I've seen written about this issue since the Kindle 2 was launched, but fortunately, Amazon has made that unnecessary. Nevertheless, there are still a few points worth making.
Amazon's latest statement on the issue opens with a flat declarative statement:
Kindle 2's experimental text-to-speech feature is legal: no copy is made, no derivative work is created, and no performance is being given.
Amazon may believe that this is true, or it may just be taking this position as a way of defending its original position.
But the truth of this position is not so clear to me. I have two issues with it:
First, the Kindle 2's text-to-speech function is certainly copying and transforming the original work into a derivative of the original, and performing this new work for the listener. That can be fair use, or it can be a crime.
Under U.S. law, fair use depends on at least four factors:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substance of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.
Reading a book to your child is fair use. Discussing a book in a book club is fair use. Buying one copy of a book and reading the whole thing to an audience is not.
My opinion: the Kindle 2's text-to-speech function, as originally proposed, failed on all four counts. It had a commercial purpose (to help sell the Kindle 2); it applied to commercial copyrighted works in their entirety; and it would have cut into the market for commercial audiobooks. Now that Amazon has backed down, the legality of this feature may never be judged by a court.
If it is a violation, it's certainly true that the violation is being committed by the operator of the Kindle 2, not by the device itself. But as the U.S. Supreme Court observed in deciding Sony of America v. Universal City Studios (1984), also known as the "Betamax case," the manufacturer of a device may be guilty of contributory copyright infringement, if the use of the device is inherently infringing.
Sony was cleared in that case because its Betamax VCRs could be used to make legitimate copies, and Sony had no control over unauthorized use.
But Amazon does have that kind of control over the Kindle 2. The Kindle 2 knows when it's working with commercial, copyright-protected e-books purchased from Amazon, and it can behave accordingly.
If technically enabling an audio production of a book, as if it were an audiobook, is a violation of U.S. copyright law, as I believe it is, the Kindle 2's text-to-speech function--enabled for those books--has no "substantial noninfringing use," the key criterion of the Supreme Court's decision.
My second problem with Amazon's position is that it's utterly irrelevant. The simple legality of text-to-speech functions is not the important issue here.
Amazon isn't just some random company making an e-book reader. It's one of the world's largest booksellers. Amazon sells books from every major publisher in the United States. Amazon even has two subsidiaries that make audiobooks (Audible and Brilliance Audio).
How could Amazon have been so stupid as to introduce an e-book reader with a feature that undermines a major portion of its business?
Never mind the relatively poor quality of the text-to-speech function on Kindle 2. It's obviously not on par with a performance from a professional reader. The Kindle 2 can't show emotions or do character voices. And never mind whether the Kindle 2's text-to-speech function will ever actually diminish audiobook sales.
It's enough that Amazon disregarded the wishes of the authors and publishers providing the content that justifies the very existence of the Kindle. That was stupid.
So now Amazon has figured that out and will do the right thing, going forward. I hope that most publishers will leave the text-to-speech function enabled. I believe that's the right choice for most books and that it won't interfere with audiobook sales enough to matter. But it's the publishers' call to make, not Amazon's, and now they get to make it. Good.
Peter N. Glaskowsky is a computer architect in Silicon Valley and a technology analyst for the Envisioneering Group. He has designed chip- and board-level products in the defense and computer industries, managed design teams, and served as editor in chief of the industry newsletter "Microprocessor Report." He is a member of the CNET Blog Network and is not an employee of CNET. Disclosure. 
Having vision problems myself, have you thought about disabled people, or people that can't read? Have you thought about the major breakthrough it could have been for these people, having instantly access to millions of books? And would you say to the face of a blind person that amazon having included that feature was "stupid"? You vocabulary shows such a lack of sensitivity that is it totally revulsing.
Camille
Tom Merrit is considering sending his Kindle back. I think we all should.
Act like an ass all you want, it doesn't make your argument more true.
So, I have a question for the author of this article. Does that mean that a blind person, or vision impaired person, using TTS on her desktop to read the vast array of copyrighted materials that she might find on the Internet is somehow violating copyrights? As I see it, Amazon is not profiting by allowing TTS of the Kindle books. They are going to charge the same price for the books, regardless if TTS is used or not. It's not a value added feature that allows Amazon to increase its revenue.
Also, let's consider something else here. Kindle books are essentially eBooks designed to be read. Where does it say that eBooks are limited to being read silently or aloud by human eyes only, and not by electronic eyes, which is the function that a TTS is basically performing. Another point. Could I not have my wife read the entire Kindle book to me? Would I be violating a copyright if she read to me my purchased copy of a Kindle book off of my purchased Kindle device? If that would be legal, then why cannot the book be read to me by an electronic device?
"PCs require substantial software changes to be suitable for use by the blind. The Kindle 2 doesn't provide that option. Get real."
I believe both Microsoft and Apple would disagree with you. Both operating systems have features built-in specifically to address the needs of their users who have varying types of disabilities, including difficulty accessing print. While it is true that the vast majority of users requiring such access to Windows will use a thrid party software product to access the operating system and applications, OS X Leopard includes text to speech that can and does stand alone.
This issue isn't simply about copyright infringement. As one who has installed text to speech systems, taught the effective use of non-visual tools for the blind, and built hardware and software systems over the past 15 years and a copyright holder, myself, this issue is about greed and the narrow minded assumption that providing media in alternative formats adulterates the original product, dilutes the market and dips into the pockets of the copyright holders. This couldn't be more untrue.
Amazon was right to include text-to-speech in their product. Unfortunately, they were also right to back-pedal as they did because they are ultimately at the mercy of the copyright holders; regardless of their perceived legal standing. As you rightly stated, they have a substancial market share in book sales. Non-cooperation with publishers would mean a tremendous loss of sales to them.
I would not want to listen to a novel in synthetic speech if a narrative version were available. Picture the difference between reading one of the Harry Potter books with a synthetic, robotic voice versus the dramatic interpretation, localized accent and accurate pronunciations read by Mr. Jim Dale. Conversely, try searching through one of the excellent Microsoft Press books on Windows or Office in spoken word format versus searchable text and you'll quickly understand the truism, "The right tool for the right job." Anyone who actually relied on the technology for its intended purpose would understand that.
By the way, I am a member of Audible.com, and have been for years. I also purchase audio books on CD and many, many books in print. Thank goodness Microsoft publishes a CD with most of their offerings that contains an accessible PDF version of the print volume. I have no print disability, but enjoy books in all these formats for various reasons.
Lastly, let me leave you with this thought. Amazon wouldn't have needed to include a text to speech feature in the Kindle 2 if the material was accesslible to all straight from the publisher.
Mr. Glaskowsky would prefer to keep vision impared readers prisoners to the excessive prices charged for audio books. Shame on him.
"Purpose and character
The first factor is about whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only "supersede the objects" of the original for reasons of personal profit. To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative."
http://en.wikipedia.org/wiki/Fair_use
As for the rest of your argument, it seems to boil down to an argument from authority. If we were going to compare the lengths of our respective careers, you would lose. But that has nothing to do with the truth of my position here, so let's not.
Text-to-speech should be up to the reader, not the publisher. Other applications can read .pdf's fine, that is how I am able to read. So I do not apprecate you minimizing the issue of text-to-speech, and claiming it's purely commercial. Anyone who adds the feature is doing it for people with disabilities in mind, as it obviously does not compete with a human voice. But text-to-speech is good enough to be used to extract the information.
For the blind and dyslexic, Text-to-speech should be on any mobile or computer device, and thus that would not be for a commercial use. Using the feature and being able to read with out a disability would be equivalent of you walking on a handicap ramp.
You wrote a lame argument.
Text-to-speech should be up to the reader, not the publisher. Other applications can read .pdf's fine, that is how I am able to read. So I do not apprecate you minimizing the issue of text-to-speech, and claiming it's purely commercial. Anyone who adds the feature is doing it for people with disabilities in mind, as it obviously does not compete with a human voice. But text-to-speech is good enough to be used to extract the information.
For the blind and dyslexic, Text-to-speech should be on any mobile or computer device, and thus that would not be for a commercial use. Using the feature and being able to read with out a disability would be equivalent of you walking on a handicap ramp. And by your logic you are saying "Don't install a handicap ramp! Somebody might use it for commercial use!" Get a life.
You wrote a lame argument.
We may well see Amazon offer books three ways-- less expensive e-books with text-to-speech disabled, expensive professional audiobooks, and a new intermediate class of e-books with text-to-speech enabled.
In any event, Amazon and its suppliers have to work this out. Amazon can't just decide for the rest of the world that it's going to start giving away audiobooks.
In any event, I didn't address that situation; why put words in my mouth?
I am a business person and I do not see how the text -to-speech capability of the Kindle2 undermines Amazon's business model. Will it decrease demand for audiobooks? Not very likely... My wife has a Kindle2 and I have listened to the "text-to-speech" from this device. It's not bad, but there is no way that I would ever listen to an entire book this way. A chapter may even be difficult to tolerate... But to "listen to a couple of pages to finish up a chapter or segment when I have to multi-task, not bad. In fact, this feature enhances the utility of the e-book content. When I say enhances the ulitity of the e-book content, I mean just that... the e-book as something to read, just got a little more valuable to me. The primary intended use is still to "read" the material. In fact, this capability might be a way to slightly increase total demand for the content.
If you are an author, run do not walk toward this new technology. It provides a way to more cost effiicienly distribute your content, potentially leaving you with a bigger residual per pook sold.
It's a shame that the head of the author's guild was also extremely shortsighted on this issue. He and Mr. Glaskowky appear to be getting as bad as attorneys, trying to nit-pick words and missing the bigger picture and possiblities. It's a shame, becasue I thought they were supposed to be the ones that are more creative and visionary.
But whether text-to-speech undermines the audiobook markets is for the publishers to decide, not Amazon.
The precedent has already been set by just about everyother type of electronic "print" media out there. One popular example is the PDF format which is popular in the technical ebook arena. PDFs can be read out loud by various readers including Adobe Acrobat.
A few have mentioned people who have vision problems. There are tons of screen readers out there for computers for people who need it. Why aren't the publishers crying fowl over those? Because they know that they wouldn't have a leg to stand on in court. Amazon should know this, and should not have backed down. And now because of the publishers, someone with a hex editor will enable it anyway. Instructions on how to do it will be made available. All the publishers will have done is create animosity. They obviously haven't learned anything from the RIAA!
Yes, there are fair use considerations, but these have to be worked out cooperatively, not unilaterally by Amazon.
In my opinion, computer architects like Mr. Glaskowsky better stick to their area of expertise -- computer architecture, and leave the interpretation of laws to those that do this for a living.
they can be "so stupid" because text-to-speech is not, and never will be an audio book performed by a professional human reader. people who regularly pay for audiobooks are not going to stop because they got a kindle, and people who don't buy audio books that own a kindle aren't going to magically start because the kindle has that feature disabled. THIS CHANGES NOTHING!!!
Yet this addiction to control is the whole problem. People who buy audio-books will keep doing so- in fact it may even popularise the format and make them mass-market and hense cheaper. Text to speech is a great feature to have and a natural addition on a digital device. I can even see it evolving with character-like voices some day. All they are doing is slowing this down and, in th process, unwittingly discriminating against blind people who need the feature to read at all.
I think what has happened here is a DISGRACE. I know visually-impaired people who need the text-to-speech feature and yes, this on the Kindle was a godsend. There is absolutely NO WAY that a text-to-speech reading of material can match a professional reader acting out an audio performance of a book. Most visually-impaired people will not care about the PERFORMANCE. They just want to be able to enjoy books, newspapers, blogs, and magazines.
You do realize that your arguments are disappearing into a fine mist, don't you?
Can you tell me how it is we're supposed to take this? Just agree to pay for a type of service that is available for free in other circumstances? Who's the one who needs to get real?
http://www.lessig.org/blog/2009/02/caving_into_bullies_aka_here_w.html
Kindle doesn't use it's text-to-speech feature to read the book aloud to an auditorium full of people. It reads it aloud to *you*, the person who purchased it.
It's an alternative view of the material you already purchased. No different than braille, or for that matter no different than outputting the text in a slightly lighter shade of gray because it hurts your eyes.
An audio book, on the other hand, is a completely separate piece of work. You are no longer buying the book, you are buying somebody's presentation of the book.
To make an argument that because an audio book is presented in a media that uses sound waves, and the text-to-speech feature of Kindle uses sound waves, that must mean Kindle is illegally allowing you to obtain a completely separate product for free is a stretch--and that's being polite.
Where exactly is that line? How much better does text-to-speech technology have to get before its results become "completely separate"?
C'mon, nail it down for us.
It's called a "fixed work". An audio book is a fixed recording, a concrete thing, that you can sell to other people. It has permanent for as a tape, CD or digital download. An audio performance is an ephemeral thing. It's loading words into a buffer and rendering them as audio. When the machine stops, the "copy" is gone. It's no more permanent than a copy that appears on the screen.
So you're all big on bright lines? Please tell me the difference between these scenarios:
- I'm blind, my neighbor comes over once a week to read me a book.
- I'm blind, I hire someone to read me a book.
- I'm sighted but lazy, so I hire someone to read me a book.
- I'm a sighted child, my mother reads a book to me at bedtime.
- I'm blind, I buy a device (like KNFB kReader Mobile) to take pictures of text from a book and read it to me.
- I'm sighted, I buy the same KNFB mobile read 'cause I think it's cool, and use it to read a book aloud.
- I buy a kindle, and use it to read a book aloud.
- I buy an audio book from the publisher, which turns out to be a crappy TTS created "licensed" version.
This is not a copyright issue. The owner of the kindle has a legally purchased copy, and can choose to "display" it in audio form for PRIVATE use. Copyright does not give the Authors Guide the right to prevent this.
This is about the audiobook business model and the content providers wanting to protect a lucrative revenue stream. But business models are not protected by copyright law. They can be undermined by competition and technological advancement. If (when) TTS gets so good that it displaces audiobooks, the audiobook business model is dead. That's life. That's progress. [Check out kReader Mobile, the cat is out of the bag.]
This isn't about law; this is about power. The content providers (via their agent, the Author's Guild) are putting pressure on Amazon to cripple technological advancements in audio rendering to protect a business model. There's no *legal* reason Amazon had to cave. They caved for obvious business reasons. They need the guild to keep licensing books for digital distribution, or the kindle is dead. That's it. Power trumps fair use.
Let's not dress this up as some God given right to revenue. The publisher is already getting paid when a Kindle copy is sold. But they'd gotten use to audio sales buffering the bottom line, and they'd prefer I continue to pay them *twice* for the same content (in audio form), even as technology makes the need for a separate audio copy obsolete.
You seem to want me to explain the Copyright Act and the practical significance of the Fair Use exceptions to you, from scratch. Sorry, I don't have the time, and you haven't paid attention to what I've written already, anyway.
You seem to want us to take your word for it that a copywrite infringing event has already occurred, and then accept your argument that it doesn't qualify as fair use. But if you can't establish the first premise, then I don't see why I should debate the conclusions that follow.
And I do like the way you ignore my own questions. Are devices such as the kReader Mobile inherently illegal? Should we ban them from sale? Perhaps we can just pass legislation that requires book printers to include a "do not speak" flag on each page of every book, so that devices like the kReader can't be used to make illegal "copies".
I'm tired of being labeled a criminal when the people doing the labeling have absolutely no evidence that I even committed a crime, let alone having ever even being convicted of committing any crime, which IS the only time you can be labeled as being a criminal. Seriously, why haven't we issued a class action lawsuit against the author's guild, RIAA, MPAA, insurance companies, etc. for making public defamental claims that everyone is a criminal? We've been told back in elementary school not to use stereotypes, and I for one am tired of this crap, and demand that they shut the Hell up about their fraudulent claims.
- by perib March 2, 2009 9:38 AM PST
- What I dont get, is why are brick/mortar/paper publishers allowed to intrude in this domain. Why isnt there a group of "e-publishers" that do the job of paperless, editing, reviewing, marketing, copyrighting..., at 5% the cost of paper-based publishers? Heck, Amazon could do the job themselves. Authors could go directly to Amazon, which is nearly directly to the consumer, and make a ton of money charging $2 per book--Amazon gets half, author gets half, and retains copyrights. Oh, and Amazon gets to sell a billion Kindles.
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- by Peter N. Glaskowsky March 2, 2009 12:21 PM PST
- As long as the authors get to decide what they're selling and what they get in return, I'm perfectly okay with this proposal. In fact, this is the one thing I admire Cory Doctorow for-- he is, in his own fumbling confused way, pioneering new methods of publishing and new ways for authors to be compensated for their work. Good! We need more of that.
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- by mattumanu March 3, 2009 2:14 AM PST
- The Author's guild as a group needs to remember that we who read their books will refuse to pay those extra fees. I purchase a device that costs me 360 dollars, then someone tells me what I can or cannot do with it? Hey, it's their bottom line, if they want to wind up losing money, they can knock themselves out.
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Showing 1 of 3 pages (86 Comments)Publishers and book stores would have a conniption fit, but they are just buggy-whip makers anyway. The only reason they have ANY say in the market place is that cowardly writers dont kick them out of the way. How about it Amazon, cant you start a Publishing department? Just one billion-seller, and it pays for itself.