I didn’t pay much attention to the release of the Kindle 2 until I got wind that many people—especially the Author’s Guild—are up in arms over its Text to Speech capability. Words are being slung into the aether, words like “derivative works” and “royalties.” And then I read Roy Blount, Jr.‘s NYT op-ed piece, “Kindle Swindle”, and boy howdy, that thing just needs to be torn into.
First of all, some background information for those of you who aren’t familiar with the legalese: the right that’s at dispute is the exclusive right, granted by Section 106(2) of the U.S. Copyright Act, of an author to “prepare derivative works based upon the copyrighted work.” But what does derivative work mean? To the Section 101-mobile, Robin! Because that’s where all the definitions are for the Act. It says, in sum:
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. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”.
The way I read the statute, there are two bars, one more stringent than the other, for derivative works. The lower bar merely requires recasting, transformation or adaptation—language that’s pretty ambiguous, and the definitions over which we can bitchfight all day. The higher bar applies even to works that transform the original so much that they in themselves qualify as “original work[s] of authorship”—Congress seemed to be trying to catch a wide variety of things in this net, so that people who attempt to claim both major and minor transformative uses are caught.
I’d argue that the Kindle fails on both counts. Fails pretty spectacularly, even, and not just because of statutory language, but because there’s really no principled way to separate the kind of reading aloud for private purposes that the Author’s Guild says is OK vs. what it says is actionable. The Author’s Guild says “Because it’s a machine, stupid!” and I say “So the fuck what?” My argument (which I’ll expand on in just a bit) is that this is a nifty new tool that makes books more usable, and it’s something to be embraced. The sky isn’t going to fall. It’s like the VCR all over again.
More legal analysis follows. And I do mean more. Also more profanity.
So what are the standards of what qualifies for derivative works? The standards, my friends, are kind of a clusterfuck, not unlike the Copyright Act is in general (author’s life plus 70, Congress? And the term extensions applied retroactively? REALLY? What the hell?). There’s a pretty clear circuit split over how much change you need to wreak on something to sufficiently “recast, transform or adapt” it so that it falls under the derivative works umbrella, as opposed to making a direct copy, or redistributing a copy you’ve already bought.
The Ninth Circuit Court of Appeals (which covers California, Arizona, Alaska, Hawaii, Idaho, Montana, Nevada, Washington and Oregon) ruled in Mirage Editions, Inc. v. Albuquerque A.R.T. Co. that some schmuck cutting Nagel’s artwork out of the pages of art books, gluing ‘em on tile and selling them individually was an infringement of the derivative works right. The court isn’t entirely clear on why exactly this is enough to qualify as a derivative work; it concludes that “appellant has certainly recast or transformed the individual images by incorporating them into its tile-preparing process.” Additionally, it rules that the first sale doctrine doesn’t apply, because Section 109, which covers first sale, explicitly addresses the author’s distribution right and ONLY the distribution right, not the derivative works right. The court, again in rather conclusory terms, dismisses the first sale concern by saying “[T]he right to transfer applies only to the particular copy of the book which appellant has purchased and nothing else.”
Which, by the way, what? It makes sense, sort of, but where does the line lie with that? What happens when I buy a buncha Jen Lobo prints and stick them in tacky frames, and then sell them as-is a few years later at a garage sale. Derivative work? What about the person who buys those prints from me, and decides to chuck the frames because the light reflecting off the fake gold leaf is kind of blinding, but she can’t afford new frames and just glues the prints to some stiff posterboard before mounting them on the walls. Derivative work then? I think the Ninth Circuit, if Mirage Editions is to be binding precedent, would have to rule “yes” in the latter, but almost definitely “no” in the former, because, if for no other reason, every person who’s ever custom-framed artwork would suddenly become an infringer; notice how Section 106 doesn’t even require a sale of a work—it just requires that the work be recast, transformed or adapted.
The standard, as announced by the Ninth Circuit, is unworkable, especially given the property rights regime in America, where there’s a really strong sense of personal property—once you buy the tangible embodiment of something, you can do whatever the hell you want with it, including reselling it.
(This case, by the way, is the target of much scathing criticism. Many legal scholars hate it. Hates it, preciousss.)
And what do you know, in 1997, another case pops up involving almost exactly the same facts (the artist is Annie Lee, and instead of pages cut out of a book, it’s postcards and lithographs). It even has the same defendant, and the case is brought in the Seventh Circuit (which covers Illinois, Indiana and Wisconsin). The judge (it’s an Easterbrook opinion, to all you legal wonks out there, so you can guess how this case is going to come out) says, though not quite in these words “What the hell kind of moral rights bullshit are you trying to pull here?” and rules that it’s not enough of a transformation to infringe. And, God help me, I agree with Easterbrook. (This is almost as traumatic as the first time I found myself agreeing with Scalia.)
Lee’s works were not “recast” or “adapted”. “Transformed” comes closer and gives the ninth circuit some purchase for its view that the permanence of the bond between art and base matters. Yet the copyrighted note cards and lithographs were not “transformed” in the slightest. The art was bonded to a slab of ceramic, but it . . . still depicts exactly what it depicted when it left Lee’s studio. [. . .] No one believes that a museum violates § 106(2) every time it changes the frame of a painting that is still under copyright, although the choice of frame or glazing affects the impression the art conveys, and many artists specify frames (or pedestals for sculptures) in detail. Munoz and Mirage Editions acknowledge that framing and other traditional means of mounting and displaying art do not infringe authors’ exclusive right to make derivative works. Nonetheless, the ninth circuit held, what A.R.T. does creates a derivative work because the epoxy resin bonds the art to the tile. [. . .] If Lee (and the ninth circuit) are right about what counts as a derivative work, then the United States has established through the back door an extraordinarily broad version of authors’ moral rights, under which artists may block any modification of their works of which they disapprove. . . . Until recently it was accepted wisdom that the United States did not enforce any claim of moral rights; even bowdlerization of a work was permitted unless the modifications produced a new work so different that it infringed the exclusive right under § 106(2).
So fine—under Ninth Circuit standards, the “transformation” wrought by the Text to Speech feature on the Kindle might qualify as enough of a change to create a “derivative work,” but the Seventh Circuit standards are different, and probably wouldn’t see Text to Speech as transformative. But that’s not the last word. In Mirage and Annie Lee, the works were fixed and resold, and let’s be frank here: it’s that commercial exploitation that makes a difference, because I think even the Mirage court would have hesitated to rule that my one-time art-print-glued-to-posterboard example a derivative work. But reselling aspects aside, what happens when the changes are more transitory and used completely in private? Because the Text to Speech function reads the book on the fly, and it’s aimed at private users. Nobody is seriously suggesting that the Kindle is going to encourage mass infringement by allowing people to, say, record Nora Roberts’ latest opus and then sell them on the Kindle Crappy Ad Hoc Audiobook Black Market. (Blount, bless his soul, damns with faint praise in “Kindle Swindle” by saying that the speech synthesizer in the Kindle is “quite listenable.”)
The Ninth Circuit had something to say about that, too. For all you nerds out there, it’s a case about the Game Genie. That’s right, Nintendo tried to sue the Game Genie for preparing unauthorized derivative works. The Court is very pointed about how derivative works don’t require fixation (which makes sense, when you think about it—if I publicly perform my one-woman solo extemporaneous re-enactment of Lord of Scoundrels, I’d still be infringing on Loretta Chase’s derivative works right, even if nothing was ever fixed in permanent form; that would be a public performance, though, and not a private use). However, the court ultimately acknowledges that “[t]he Game Genie is useless by itself, it can only enhance, and cannot duplicate or recaste [sic], a Nintendo game’s output. It does not contain or produce a Nintendo game’s output in some concrete or permanent form, nor does it supplant demand for Nintendo game cartridges,” and analogizes it to a spell-checker. Like the Game Genie, the Kindle’s Text to Speech function doesn’t actually change or transform a book, it merely provides an enhancement. At the very most, it creates a duplication.
Aha, so duplication—what if it’s an infringement of the reproduction right? That’s not going to fly, either—because the definition of “copies” does have a fixation requirement.
So now all that legal malarkey is done with, I’m finally addressing the whole “machines reading out loud not OK, people reading out loud OK” distinction that the Author’s Guild has tried to make over and over again. My question is: what’s the difference? What makes the machine reading a derivative work, but not the human reading? Blount doesn’t make any kind of principled distinction. He says:
For the record: no, the Authors Guild does not expect royalties from anybody doing non-commercial performances of “Goodnight Moon.” If parents want to send their children off to bed with the voice of Kindle 2, however, it’s another matter.
So the Kindle has a built-in ability to read aloud, and that’s not kosher because Amazon hasn’t paid authors for the audio rights? You know, I have that built-in ability, too. So does almost everybody I know. It’s called literacy and a functional larynx.
But let’s assume for the moment that there is some sort of reasonable distinction between reading aloud in private as performed by a speech synthesizer vs. reading aloud in private as performed by a human. If Kindle’s speech synthesizer is covered, are ALL speech synthesizers covered? What happens if Stephen Hawking wants to read something out loud to his family? What about speech synthesizers for the blind? What sorts of messy exceptions would we need to carve out?
And here’s what really gets to me: this feature makes books more useful. It actually adds value to the books, and adding value to your books tends to, oh, I don’t know, SELL MORE BOOKS because hey, all of a sudden, your readers can listen to books in the car or while they’re doing dishes, even those books that don’t have an official audiobook edition out (and the vast, vast majority of books don’t), which means they’re going through your books even faster. Negotiating audio rights individually for the Kindle like the Author’s Guild wants to do is all well and good, but sweet mother of Pete, can you imagine the transaction costs of that? And guess who’s going to ultimately pay for it? Sure as shit not Amazon.
Another sticking point seems to be the distinction between “private use” and “commercial use.” And yeah, the Kindle is a commercial product, whereas parents reading out loud to their children constitutes a completely private act. But it’s a commercial product for private use. As long as somebody isn’t podcasting the Kindle reading Born in Ice, or selling a Kindle recording on the Kindle Crappy Ad Hoc Audiobook Black Market, I don’t see a problem. Yes, authors have a chance for a bigger slice of the pie by negotiating for audio rights, because all of a sudden you can negotiate with a discrete entity instead of every damn person who wants to read a book out loud, but is it worth it, especially since it’s ultimately going to ding the readers?
Blount also brings up the specter of improved technology. Oh no, says he, IBM is coming up with incredibly human voices that are able to mimic human speech patterns with eerie accuracy.
You know what? He’s right. It’s getting better, and it’s getting better all the time. But the analysis doesn’t change. I genuinely don’t think there’s a difference whether it’s your mom, or a cheap tinny speech synth, or freaking HAL or GLaDOS that’s reading out loud to us.
I think I’d respect their positions a lot more if they came right out and said “Yes, we DO think that reading aloud is a derivative work, and yes, all of you are infringers, but you’re probably covered under fair use.” That, at least, would expose some of the absurdities that crop up when we attempt to use copyright to control every motherfucking use, all the goddamn time.
We have this “OH JESUS THE SKY IS FALLING” brouhaha every time a new technology comes along that might result in some people maybe infringing some kind of exclusive right under the Copyright Act. Photocopying machines, VCRs, CD burners, and now the Kindle. Some copyright owners get really het up—why? Because they want to retain control. As much of it as they can, all the time. And intellectual property doesn’t really work that way. Once you sell a book, it’s out there, in the wild, wiggling its way into our minds. We’re inspired by them, we talk about them, we write about them, and we read them out loud. It enters the public discourse. It’s yours, but not really, because parts of it are ours, too. I think we’re in danger of forgetting, especially after the insane extensions of terms and the trend towards stronger and stronger protections for content creators, that the rights embodied in copyright law are meant to secure progress in knowledge—that they should be used as incentives to create and promote progress, not to clamp down on innovation. (We have patent law for that. AH HA HA HA ZING.) Copyright owners have rights—but users and consumers have rights, too. My copyright professor thinks people nowadays tend to quickly dismiss works as infringing, because hey, there’s fair use, right? But fair use is a defense. And some uses don’t, and shouldn’t, require defenses. Reading out loud in private is one of them—whether you’re using your own larynx, or a speech synthesizer.