February 11, 2009 | By michael

Does the Authors Guild Want to Sue You for Reading Aloud to Your Kids?

The Wall Street Journal yesterday reported that the Authors Guild is up in arms over a feature of the new Amazon Kindle 2 that reads e-books aloud using a text-to-speech algorithm. According to Authors Guild executive director Paul Aiken, "They don't have the right to read a book out loud." Why not? According to Aiken, when a book is read aloud by a Kindle 2, that creates an unlawful derivative work. Parents everywhere should be on the look out for legal papers haling them into court for reading to their kids.

Luckily for parents, teachers, and everyone else who likes to read aloud, the Authors Guild is simply wrong. Let's start with the derivative work argument. Under the Copyright Act, a derivative work is "a work based upon one or more preexisting works . . . which, as a whole, represent[s] an original work of authorship." While a book read aloud may be useful (or not—let's remember this is a speech synthesizer, not a human being, reading the book), where is the originality that makes the version read aloud on a Kindle 2 creative, independent of the original book? The design of this new nifty feature may have been creative, but its use is not. No creativity, no copyrightability, end of story (pardon the pun). Even if that wasn't a bar to the derivative work argument, the Ninth Circuit Court of Appeals has held that a derivative work must have some concrete or permanent 'form.'" The Kindle 2 creates some sounds that immediately trail away into the ether, thus failing that test.

Ok, so it's not a derivative work. Maybe the Authors Guild would then argue it's an unlawful reproduction, and the Copyright Act forbids the making of copies (subject to things like fair use, see below). True enough, but in order to be a "copy," the allegedly infringing thing must be "fixed." And fixation requires that the copy be "sufficiently permanent or stable to permit it to be . . . reproduced . . . for a period of more than transitory duration." Here, the audio version is presumably buffered in RAM on the Kindle 2 for mere moments. Last summer, the Second Circuit Court of Appeals held that copies retained for 1.2 seconds in RAM buffers on Cablevision DVRs were not "fixed." So there are no unlawful "copies" being made when Kindle 2 users read books aloud.

Moving down the copyright checklist, there's no unlawful distribution. Amazon distributes the e-books (with permission!), not the version read aloud, which is created on the fly by the Kindle 2. And unlawful distribution in any event requires distribution of a "copy," which requires fixation, which we've already explained is missing here.

And it's not an unlawful performance. The Copyright Act grants copyright owners control over performances of their work, but only public performances. Listening to a book you purchased being read to you by your Kindle 2 is not a public performance.

So there's no disruption of any exclusive rights held by the copyright owners. Even if there were, it seems pretty unlikely that robotic readings by text-to-speech synthesizers would harm the market for the original work, and thus the text-to-speech versions are overwhelmingly likely to qualify as fair uses, were it even necessary to get to that issue.

Phew! We can all go back to reading to our kids.

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