Spring/Summer 2009

Talk to Me: Amazon Puts Kindle2's Text-to-Speech Function on Pause Over Copyright Concerns

Holland & Knight Newsletter
Paul F. Kilmer

Amazon, the online retailer, announced the introduction of its Kindle2 electronic book with great fanfare this year. Among the most touted features of the updated device is its ability to “read” the text of books, newspapers or magazines when the owner has tired eyes or is in low light conditions (the Kindle2, unlike the newer version of the Sony Reader, does not have a built-in backlight). The device’s text-to-speech function operates while the printed words are still on the Kindle2’s screen, and the electronic pages “turn” as the reading software advances through the book or other publication.

The “reading” function of the Kindle2 garnered immediate criticism from authors and publishers since Amazon was not inclined to pay additional copyright royalties for the synthesized audio renditions of literary works. Authors and publishers advanced the argument that the audio renditions of their works amounted to the creation of a second copy, a derivative work, or the unauthorized performance of the literary material that merited an additional royalty payment. Their economic argument was bolstered by the popularity of audio books, which have grown into a billion dollar market.

The objections raised by authors and publishers provoked a backlash by advocates for the visually impaired and disabled, who have enjoyed certain exemptions from copyright infringement for decades. This blowback was only mildly tempered by the fact that the Kindle2 requires the use of visual on-screen controls, which are not usable by the blind, although some visually impaired individuals may be able to navigate the on-screen functions, including activation of the text-to-speech controls.

Copyright legal experts and interest groups almost immediately jumped into the fray. The Electronic Frontier Foundation, which often opposes expansion of copyright interests, railed that the interpretation of the law advanced by authors and publishers would make copyright infringers out of parents who read bedtime stories to their children.

Copyright legal experts weighing in on the matter, including Professor Peter Jaszi of American University’s Washington College of Law, seem to agree that the issue of whether text-to-speech is a copyright infringement boils down to whether it violates one of the exclusive enumerated rights of copyright owners set out in 17 U.S.C. Section 106, that is, whether it creates a new “copy,” a derivative work or an unlawful performance of the licensed literary work. Those like Professor Jaszi who do not believe that the Kindle2’s text-to-speech capability infringes copyright posit three arguments in relation to the rights enumerated in Section 106 of the Copyright Act:

  1. Only one “copy” of the underlying work – the digital copy – is resident on the Kindle2 and the speech synthesizing which occurs resides within the Kindle2 for only a transitory period of time – just long enough for the words to be “spoken” by the device to its user (thereby not being fixed for a sufficient period of time to merit treatment as a separate or additional “copy” of the work).
  2. The text-to-speech function performs the underlying work verbatim and therefore is not “derivative” (that is, text-to-speech is a performance of the exact underlying work, not a recasting of the work, nor is it a “sound recording” which would also come within the definition of a derivate work). Alternatively, even if text-to-speech creates a derivative version of the work, because it is not a “copy” (not fixed for a sufficient period of time, per the argument above), it is not an infringement.
  3. The “performance” right in literary works applies only to “public performance” (ergo reading bedtime stories to members of one’s immediate family is not an infringement).

There is some question as to how the Kindle2’s text-to-speech facility actually functions within the device, and therefore some uncertainty as to whether a second, unlicensed, copy or derivative version of the work being “read” actually resides within the machine for more than a brief period of time. If the device “caches” a portion of the text for some period of time more than milliseconds, there is at least an argument that an additional “copy” or perhaps a derivative work under the terms of Section 106 of the Copyright Act is created by Kindle2’s text-to-speech software.

There is also some controversy as to whether derivative works require the same duration of fixation needed to establish copyright protection in the underlying work. However, even if a derivative work is being created, a further question looms as to whether that derivative work is being summoned into existence by Amazon or by the user of the Kindle2 device. If the user of the device is commanding the preparation of the derivative work for personal use, then that derivative work may fall within the fair use defense established by the Supreme Court in its 1984 Betamax decision.

Despite the availability of possible defenses, in order to avoid controversy and keep the pipeline of printed material open for its Kindle2 device, Amazon announced on March 2, 2009, that authors and publishers could dictate whether their works would be available for text-to-speech functionality on the device. However, to date, Amazon has not offered to pay additional royalties for the text-to-speech feature on the Kindle2.

Copyright law, like many fields, has always been behind the technologies that drive the consumer market. The advent of the piano roll in the early part of the 20th Century resulted in a case that found its way to the Supreme Court and a “performance right” controversy that is back in front of Congress in 2009. In that the legal footing under text-to-speech remains unclear, it is likely that the last chapter in this controversy has yet to be written and could be years away.

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