Amazon: Only Copyright Holders Can Unzip Kindle's Lips

Amazon (Nasdaq: AMZN) has backed off from the brewing legal controversy surrounding the text-to-speech function in its Kindle 2 electronic book reader. The feature allows users to hear the text of a book read aloud, although not in the dramatic -- or even conversational -- style of typical audio books. The Kindle 2 uses a computerized voice translator to deliver a robotic rendering of the material.

Still, the feature has raised the hackles of copyright holders who see it as a growing encroachment on audio book rights. One concern is that the Kindle technology could eventually become good enough to compete with human readers.

Text-to-speech (TTS) programs are improving, notes a blog post on behalf of the Authors Guild, which is leading the protest against the Kindle.

As evidence, the blog includes a couple of samples of TTS that were available with Apple's (Nasdaq: AAPL) Macintosh operating system released in 2005.

Amazon still maintains that the feature is completely legal; nonetheless, it will allow copyright holders to decide on a title-by-title basis whether to provide the text-to-speech feature -- neatly sidestepping an interesting legal question that is bound to reappear again.

Indeed, the controversy is yet another example of how new technologies insert themselves into longstanding assumptions, Ray Van Dyke, a technology lawyer with Merchant & Gould, told the E-Commerce Times.

Copyrights are a bundle of distinct exclusive rights, each of which can be licensed or sold separately, he explained.

"A license to display a work is distinct from a right to perform. Thus, the rights here could be to display the work on a [device], such as the Kindle -- but not to perform the work, such as an auditory reading, for commercial sale," said Van Dyke.

Not a Performance

The issue is not as clear cut; Amazon maintains that providing an auditory copy of the text is a "fair use" of rights that it purchased.

In the auditory version, "no copy is made, no derivative work is created, and no performance is given," the company says in a statement.

There is legal precedent for Amazon's analysis, said Jon M. Garon, professor of law at Hamline University School of Law.

"The text-to-speech function should not be seen as a copyright issue," he told the E-Commerce Times. "The performance of the Kindle e-books would be a private performance rather than a public performance, which is not one of the exclusive rights granted to copyright owners."

Although there may be a derivative work created when the book is being read, this temporary audio file is highly ephemeral. Given the congressional intent that private performances should not be protected by copyright, any creation of such temporary files should be considered fair use, he concluded.

Legally speaking, what Amazon did was akin to someone reading a children's book out loud to a child, commented Darryl Wilson, a professor of law at Stetson University College of Law.

"What critics are maintaining is that the computer-generated voice violates the derivatives rights clause," he told the E-Commerce Times. "I would have to say that is a strain. The copyright act does provide copyright holders with the right to control adaptations and derivatives of their work -- such as a play based on a book -- but it doesn't apply here."

Fair Use Checklist

The requirements for fair use suggest that Amazon might well have been facing down a legal challenge, said Dave O'Neil of O'Neil & McConnell

"Frankly, I think it would have been dead in the water," he told the E-Commerce Times.

To make a determination of fair use, it's necessary to look at the character of the use. Is it commercial or nonprofit? Other factors that must be considered: whether the nature of the copyrighted work entitles the owner to compensation; and how much of the work is used -- e.g., is the entire book read or just one chapter?

"When you start going down the line of fair use analysis, Amazon loses on every level," O'Neil said.

Of course, whether Amazon would win a legal battle on fair use is moot. The argument probably won't be raised again by the company, regardless of how many new products it chooses to develop.

The reason Amazon caved is that it recognizes the importance of building an author community that wants to promote its books on the Kindle, Garon said. "To encourage authors to make their works available on Kindle, Amazon seems to have recognized that it should not harm other economic interests of the authors."