Ex-default for Kindle 2 text-to-speech: Legal?

Company backs down from its original plan to let its new Kindle 2 e-book reader read aloud from any document on the device. Its former plan was ill-considered and arguably illegal.

Amazon yielded to the inevitable on Friday when it announced (in this statement) that it would no longer enable the text-to-speech feature on its Kindle 2 e-book reader by default; publishers can make the call.

Instead, publishers may enable the text-to-speech feature on a title-by-title basis, if they believe that choice is in their best interest.

Kindle 2
Amazon's Kindle 2 e-book reader Amazon.com

I have been sorely tempted to write a response to some of the factually incorrect and even grossly deceitful pieces I've seen written about this issue since the Kindle 2 was launched, but fortunately, Amazon has made that unnecessary. Nevertheless, there are still a few points worth making.

Amazon's latest statement on the issue opens with a flat declarative statement:

Kindle 2's experimental text-to-speech feature is legal: no copy is made, no derivative work is created, and no performance is being given.

Amazon may believe that this is true, or it may just be taking this position as a way of defending its original position.

But the truth of this position is not so clear to me. I have two issues with it:

First, the Kindle 2's text-to-speech function is certainly copying and transforming the original work into a derivative of the original, and performing this new work for the listener. That can be fair use, or it can be a crime.

Under U.S. law, fair use depends on at least four factors:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substance of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

Reading a book to your child is fair use. Discussing a book in a book club is fair use. Buying one copy of a book and reading the whole thing to an audience is not.

My opinion: the Kindle 2's text-to-speech function, as originally proposed, failed on all four counts. It had a commercial purpose (to help sell the Kindle 2); it applied to commercial copyrighted works in their entirety; and it would have cut into the market for commercial audiobooks. Now that Amazon has backed down, the legality of this feature may never be judged by a court.

If it is a violation, it's certainly true that the violation is being committed by the operator of the Kindle 2, not by the device itself. But as the U.S. Supreme Court observed in deciding Sony of America v. Universal City Studios (1984), also known as the "Betamax case," the manufacturer of a device may be guilty of contributory copyright infringement, if the use of the device is inherently infringing.

Sony was cleared in that case because its Betamax VCRs could be used to make legitimate copies, and Sony had no control over unauthorized use.

But Amazon does have that kind of control over the Kindle 2. The Kindle 2 knows when it's working with commercial, copyright-protected e-books purchased from Amazon, and it can behave accordingly.

If technically enabling an audio production of a book, as if it were an audiobook, is a violation of U.S. copyright law, as I believe it is, the Kindle 2's text-to-speech function--enabled for those books--has no "substantial noninfringing use," the key criterion of the Supreme Court's decision.

My second problem with Amazon's position is that it's utterly irrelevant. The simple legality of text-to-speech functions is not the important issue here.

Amazon isn't just some random company making an e-book reader. It's one of the world's largest booksellers. Amazon sells books from every major publisher in the United States. Amazon even has two subsidiaries that make audiobooks (Audible and Brilliance Audio).

How could Amazon have been so stupid as to introduce an e-book reader with a feature that undermines a major portion of its business?

Never mind the relatively poor quality of the text-to-speech function on Kindle 2. It's obviously not on par with a performance from a professional reader. The Kindle 2 can't show emotions or do character voices. And never mind whether the Kindle 2's text-to-speech function will ever actually diminish audiobook sales.

It's enough that Amazon disregarded the wishes of the authors and publishers providing the content that justifies the very existence of the Kindle. That was stupid.

So now Amazon has figured that out and will do the right thing, going forward. I hope that most publishers will leave the text-to-speech function enabled. I believe that's the right choice for most books and that it won't interfere with audiobook sales enough to matter. But it's the publishers' call to make, not Amazon's, and now they get to make it. Good.

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