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Copyright Bullies #1 (first in an occasional series)

By Georgia Harper

Many publishers license digital text for downloading through Amazon.com. Now Amazon is out with the Kindle 2 device, which in addition to displaying the electronic books you purchase will read them aloud to you - after a fashion! This is not (it bears emphasizing) a substitute for conventional recorded books, presented by professional readers and boasting a variety of production values. What the Kindle will generate is synthesized speech, which is serviceable when conventional reading isn't an option and essential for print-disabled "readers" (including the blind and the dyslexic). Now (on February 12, to be exact) comes the Authors' Guild, an advocacy organization of professional writers, suggesting that someone (Kindle users? Amazon?) is courting copyright infringement liability as a result of the new "Text to Speech" function. This attempted shot across Amazon' bows is at http://www.authorsguild.org/advocacy/articles/e-book-rights-alert-amazons-kindle-2.html, and it makes interesting reading. There's just one problem with the argument: However great a threat the Guild may discern to the increasingly lucrative recorded book market, its members have nothing to say about this new technology, as far as copyright law is concerned. This leads me to a brief disquisition on why we don't get sued for singing in the shower. It isn't because such amateur performances are fair use, or because the music industry is solicitous of our personal privacy. It is because the itemization of the exclusive rights of copyright owners (in Sec. 106 of the Act) is, itself, exclusive. If a right isn't listed, copyright owners don't have it - period! And where performances (of music or text or anything else) are concerned, the statute only enumerates a right of public performance. (That's also why, once you purchase a record or CD, you can play it until your friends and family is thoroughly bored with it.) What's true of private musical vocalizations is equally true of reading aloud in our homes or offices or vehicles. And the fact that the reading is being done with the aid of a personal reading device changes nothing. On its website, the Guild states that its Executive Director's remarks on the subject "have been interpreted by some as suggesting that the Guild believes that private out-loud reading is protected by copyright. It isn't, unless the reading is being done by a machine." But why? It's a distinction without a difference, at least where copyright is concerned. If the Guild is pinning its hopes on a court's willingness to treat whatever short-lived buffer copies may be generated by the Kindle's "Text to Speech" function, they should take another look at the discussion of transitory copying from the Second Circuit's 2008 decision in Cartoon Network LP, LLLP v. CSC Holdings, Inc., 536 F.3d 121 at 129-130. Nor incidentally, do hundreds or thousands of separate private performances, whether or not machine-enabled, somehow constitute a cumulative public performance. This concept, however we may like or loath it is simply unknown to the law. And it goes without saying that if the users of the Kindle 2 are in the clear, so is Amazon for distributing the device - thanks to the familiar rule that secondary liability for infringement can exist only where there is primary infringement. So here's hoping that Amazon doesn't allow itself to be intimidated by this overreaching assertion of non-

Full post as published by ©ollectanea on February 22, 2009 (boomark / email).