chain of causation

a series of events in the life of a lawyer

Archive for February 2009

iPod nanos are intended for storing and playing music – not stared at

Attorneys are often cautioned to express their ideas in a calm, calculated manner in order to not inadvertantly convey the wrong message through the use of raw emotion. This I believe is one fine example of a calculated exception.

Written by Vincent Kan

February 24, 2009 at 8:56 pm

Posted in Random

Credit Crisis Capsule Summary

The basics of how the whole credit crisis got rolling in an absolutely fabulous visualization:

The Crisis of Credit Visualized from Jonathan Jarvis on Vimeo.

Written by Vincent Kan

February 22, 2009 at 1:18 pm

Posted in Random

Kindle 2.0’s Text-to-Speech – Copyright Infringer?

Amazon released a new version of their Kindle portable electronic book reader this week, and amongst its new features is the capability to read text aloud via a computer synthesized voice. It seems the Author’s Guild has taken exception [via Overlawyered] to this claiming that it violates their members’ rights to an audiobook adaptation of their works. (Neil Gaiman, notable science fiction and fantasy author, weighed in and hit all of the practical points in much shorter form.)

After my initial flabbergasted reaction to a comparison of a computer synthesized voice to an actual human being and that anyone would voluntarily pick the former over the latter, I sat down with Title 17, United States Code § 106 to see whether this made any sense. In relevant sections:

§ 106. Exclusive rights in copyrighted works
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
…(2) to prepare derivative works based upon the copyrighted work;…
…(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;…

(Presume for the moment that Amazon has done all the proper rights clearing to get the original text on to the Kindle device in the first place.)

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. 17 USC § 101 An audiobook, being based on the original literary text, falls into this definition and as such is within one of the exclusive rights granted by § 106. So on its face, Kindle’s audio version of the original text would seem to fall within this exclusive right… if it were a work.

A work (and by extension derivative works) in order to be subject to copyright must be “fixed in a tangible medium of expression.” 17 USC § 102(a). “A work is ‘fixed’ in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration. A work consisting of sounds, images, or both, that are being transmitted, is ‘fixed’ for purposes of this title if a fixation of the work is being made simultaneously with its transmission.” 17 USC § 101.

I am not intimately aware with the inner workings of Kindle 2, but I think it is safe to assume that it does not record the audio it produces simultaneously, if at all, in order to invoke the transmission clause. It is my presumption that upon user request, the Kindle device converts from text to speech on-the-fly similar to that of the Macintosh OS X system service which has been available in various forms for almost 25 years. (Wikipedia notes that MacinTalk was introduced in 1984.) Therefore, Kindle should not be violating the derivative work right. The audio output from Kindle is not a work fixed in a tangible medium of expression and as such cannot violate the derivate work right by definition.

This aligns with the common sense interpretation of reading a book aloud. If I read Dr. Seuss to my future children as a bedtime story, I believe most would agree that such an act is not the creation of a derivative work to which I am subject to being held a copyright infringer. It also provides a purpose for the public performance right in § 106(4) – if it were a violation of the derivative work right to merely read (by human or mechanical means) aloud a literary text, there would be no purpose for the public performance right.

The problem with Kindle violating the public performance right is that it must be a public performance.

To perform or display a work “publicly” means—
(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

Now while it is conceivable that the Kindle could violate (1) by having a user use the text-to-speech feature in a public place, this would open up an analysis under Betamax (Sony v. Universal, 464 US 417) as to whether the Kindle is capable of substantial uninfringing uses. The answer to that should be yes as the previous Kindle functioned as a wireless marketplace and reading device for electronic books which was, as far as I am aware of, a fully licensed and authorized distribution mechanisms by the very same Author’s Guild.

As to (2), the Kindle itself does transmit or otherwise communicate the original literary work in electronic form to the public and such transmission is already authorized by the agreements that allowed the original Kindle to operate. However, it does not transmit or otherwise communicate the text converted to speech to the public other than by audible proximity to the device.

Outside of the legal framework of copyright, I also fail to see as a practical matter how the Kindle’s text-to-speech function would otherwise diminish the market for audiobooks. The current state of the art in text-to-speech technology is quite far from producing sound that passes for a human similar to a Turing test. Presumably in the future it is possible for computer synthesized audio to be indistinguishable from that of a human and that perhaps with an amendment to the public performance right such text-to-speech conversion may be protected by law. Such a law, may however run afoul of anti-discriminatory laws that protect the blind which brings up as a practical question, why hasn’t the Author’s Guild sued the manufacturers of screen reading devices. After all, they essentially do the same thing that Kindle’s text-to-speech feature do, yet no one seems to have a particular problem with the blind being alleged copyright infringers.

At the end of the day, I suppose Kindle will end up being charged for the ability to convert text to speech not by copyright, but rather by contract to access the Author’s Guild’s works. Whether that is fair or anticompetitive behavior I leave to another discussion.

Written by Vincent Kan

February 14, 2009 at 2:43 pm

Posted in Random

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Short Quips: February 9, 2009

Written by Vincent Kan

February 9, 2009 at 7:10 pm

Posted in Random

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