Monday, February 16, 2009

The Authors Guild versus the Amazon Kindle 2

Last week, Amazon announced the new Kindle 2, the second version of their extremely popular ebook reader. One of the new features is the ability to read the books aloud with a computer voice.

Immediately, the Authors Guild expressed its unhappiness with this feature and demanded that Amazon disable it. Amazon laughed in response, and the Authors Guild threatened a lawsuit. The Authors Guild has also told its members to hold off assigning ebook rights in their contracts until this matter is settled.

During the last week, no trade blog, press article, or the Authors Guild has clarified this situation or has really defined what this means to writers and readers so I've put this article together to do so.

First, some definitions.

TEXT-TO-SPEECH, TTS, OR VOICE-TO-SPEECH: A computer program that reads text aloud with a computerized voice, or the audio version of that reading. TTS programs are on all computers these days and on many PDAs, cell phones, etc.

AUDIOBOOK: A human verbal performance of a book that is recorded digitally. This performance may be by an individual or a group of actors. Audiobooks are created by companies who contract the audio rights of the book from the author or publisher.

COPYRIGHT: The legal protection of the ownership of intellectual property including writing. For a simple definition, go here: http://en.wikipedia.org/wiki/Copyright For a more complex discussion of copyright, particularly publishing and copyright, check out this site by publishing lawyer, Ivan Hoffman. http://www.ivanhoffman.com

RIGHTS: In publishing, rights refer to the different types of format sales for a written work. Some of the rights that can be contracted from an author are the right to publish a paperback version, a hardcover version, an ebook version, and an audio version of a work.

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The major legal problem with TTS is that it has never been clearly defined through a lawsuit or some other legal means. Right now, no one can say with legal certainty that TTS is a right on its own, a part of the audio rights, or part of the ebook rights.

Amazon's stance is that TTS is part of the ebook rights so the Kindle can use TTS on all ebooks.

The Authors Guild's stance is that TTS is part of the audio rights so Amazon can't use TTS without a contract for audio rights.

Some authors are saying that TTS is a right by itself, and that, unless publishers have contracted that right, neither they nor Amazon have any right to use TTS with an ebook.

Many of the major publishers are taking no stance because the issue is so unclear, and they use DRM (digital rights management) to prevent the ebook from being read with TTS because they don't know if they have that right.

Some audiobook publishers are so leery of the unclear legal status of TTS that they refuse to contract a book that allows TTS in ebook format.

With all these problems, it's easy to see why authors and the Authors Guild are so upset by Amazon's grab for TTS rights on books. If Amazon succeeds, many authors may lose their lucrative audio rights without payment. If TTS is a right on its own, then Amazon will be taking an author's right they haven't paid for.

Also, TTS has improved dramatically in the last years, and in the near future, TTS programs should improve their quality until they are almost equal to a human reading. If authors don't fight to retain TTS rights now, they may lose a valuable right in the future.

Where does this leave everyone? In a serious mess.

The best thing that can happen for all the parties involved is that TTS rights will be finally defined legally.

VARIOUS POINTS ABOUT THIS ISSUE ELSEWHERE.

A remarkable amount of nonsense and grandstanding has appeared over the web on this subject, and I'd like to clarify some of these points.

* This will make reading to your kids illegal.

No, it won't. Reading aloud to your children or privately to someone else will never be illegal. What is illegal is reading someone else's work for profit without permission. In other words, you can read A CAT IN THE HAT to your kids or a group of kids, but if you do that and charge admission without the permission of the Dr. Seuss' estate or publisher, it is illegal. It is also illegal to sell a copy of your reading if you do so without permission.

* Publishers and authors are just being greedy.

Asking for payment for work done isn't greedy. Authors, with just a few exceptions, don't make much money, and publishing has a very low margin of profit so the industry needs fair profit just to stay afloat.

* This is will hurt those with visual disabilities.

The publishing industry, both authors and publishers, allowed free audiocopies of books and large print copies of books aimed at the visually impaired long before various disabilities acts were passed, and it has remained friendly and accessible to the visually impaired.

Right now, many ebooks have TTS cut off because of the confusion about TTS rights so a legal clarification will make more books available for TTS through the rightful contractor of those rights.

* I bought this ebook. I can do what I damn well please with it.

No, you can't. An ebook is intellectual property. When you buy a copy, you are allowed to read it, but you don't have the right to copy it and give it or sell it to others.

Authors or publishers, however, will not chase you down and brutalize you if you read that book with TTS or print out a copy for your own personal use.

This current controversy is about Amazon's grab for rights most publishers and authors don't believe they've contracted. It's not about individuals using TTS.

ABOUT MARILYNN: I am not a lawyer, nor am I member of the Authors Guild. I am, however, a published author who has been interested in electronic rights for over ten years, and I have researched the subject of text-to-speech over the last several years.

RESOURCES, BLOGS, AND ARTICLES ON THIS SUBJECT

"Cory Doctorow on the Amazon Kindle controversy." Doctorow does his usual "free books are good" spiel with little regard for the complexities of this issue. http://www.mediabistro.com/galleycat/authors/cory_doctorow_criticizes_authors_guild_108386.asp?success&disqus_reply=6187558%23comment-6187558

"Legal ruckus over the Kindle." A fairly reasonable statement of the general facts of the case. http://tech.yahoo.com/blogs/null/121556

"Amazon Releases the New Kindle 2." Includes some legal issues. http://online.wsj.com/article/SB123419309890963869.html

"Book publishers object to Kindle's text-to-voice feature." Covers some of the legal issues involved. http://news.cnet.com/8301-1023_3-10161104-93.html

"E-Book Rights Alert: Amazon's Kindle 2 Adds 'Text to Speech' Function." Authors Guild statement. http://www.authorsguild.org/advocacy/articles/e-book-rights-alert-amazons-kindle-2.html

Copyright lawyer, Ben Sheffner, blogs on the controversy. http://copyrightsandcampaigns.blogspot.com/2009/02/authors-guild-explains-stance-on-new.html

"Kindle Text-to-speech is a lot of talk." One of the better overviews of the legal questions involved. It also includes two versions, one by a TTS program and one by a human, of some text to compare the two methods. http://www.networkworld.com/news/2009/021109-kindle-text-to-speech-issue-is-a.html?page=1

"Know Your Rights: Does the Kindle 2's text-to-speech infringe authors' copyrights?" Ex-copyright attorney talks about the issues involved. The best overview I've seen. http://www.engadget.com/2009/02/11/know-your-rights-does-the-kindle-2s-text-to-speech-infringe-au/

"DRM White Paper AAP/ALA White Paper: What Consumers Want in Digital Rights Management," Discusses the problems of TTS for publishers and audiobook companies because it isn't adequately defined in a legal sense. No longer available online.

5 comments:

Morgan Mandel said...

Isn't it hard enough to get any money out of Amazon? They are a greedy bunch all right.

Some of the profit should go to the authors. We're the ones who think up what goes on there.

Morgan Mandel
http://morganmandel.blogspot.com
http://makeminemystery.blogspot.com

Anonymous said...

I really don't think copyright holders have a case against Amazon in this regard.

What takes place when a user invokes a TTS program on a book can be seen either as a format shift (which is fair use) or as a performance of the work.

Performing a copyrighted work is legal, as long as the performance is private. Now, it's hard to imagine a more private way of performing a work than playing it through headphones...

Note that Amazon is not involved at all in the user's decision. Of course, if publishers are unhappy with TTS on the Kindle, they should either use DRM to prohibit its use, or negotiate the issue when licensing their works.

(Thanks for defining the term RIGHT; its usage in publishing is very different from its usage when discussing copyright infringment (where it refers to one of reproduction, distribution, preparation of derivative works, public performance or public display).)

Anonymous said...

I don't particularly love Amazon and I believe authors should be paid for their work, but this attitude seems terribly unfair towards those with visual disabilities. Not every book is published in a large print or audio format, and when they are, those formats are frequently far more expensive than standard hardcover or paperback.

To give an example of a popular book, Stephanie Meyer's Breaking Dawn is currently listed on Amazon as follows:

Kindle Edition (Kindle Book) $11.38
Hardcover $15.63
Audio Download (Audible.com) $31.50
Audio CD (Audiobook,Unabridged) 37.80
Hardcover (Large Print) $22.48

A visually impaired person who wishes to have access to this book is forced to pay double the hardcover price. I cannot think the Authors Guild is going to find a lot of outside sympathy on this issue.

Mark said...

Great post Marilynn.

It made me wonder if the Authors Guild is confusing its class of objects - confusing verbs for nouns. An ebook is a format. An audio book is a format. TTS is functionality. It is more akin to using a highlighter than to using a photocopier.

I am not sure if it has been mentioned already but all apple computers have TTS functionality built-in. having my computer read to me is very helpful when I am cleaning the house.

coffee said...

it seems like the Kindle is a practical step toward saving trees since it is so much more convenient to carry around than a stack of books.