[blindlaw] FW: Cory Doctorow: Authors have lost the plot in Kindle battle

Wed Apr 1 10:21:23 UTC 2009

Cory Doctorow, The Guardian March 31, 2009

Authors have lost the plot in Kindle battle

http://www.guardian.co.uk/technology/2009/mar/31/cory-doctorow-kindle

Amazon's Kindle 2 text-to-speech feature is not so much violating  
authors' copyright but rather basic consumer rights

The Amazon Kindle 2's release in February was attended by much fanfare  
and controversy: Kindle customers were delighted to discover that  
Amazon had upgraded the Kindle's feature-set so that it could use a  
credible text-to-speech synthesiser to read the books aloud.

This set off the Authors Guild (an organisation that is also on record  
as opposing making books searchable through Google, and making used  
books available through Amazon), who claimed that Amazon was in  
violation of copyright, since only the rightsholder could authorise an  
"audiobook adaptation" of a book.

As a point of law, I think that the Authors Guild is just wrong here,  
for the obvious reasons that:

1. It's not an infringement for a Kindle owner to use technology  
privately to modify a copyrighted work. If you own a painting, you can  
take a photo of it to carry around in your wallet - without paying the  
painter any extra. You can rip your CDs at home without the musician's  
permission.

And you can use a technology to convert an ebook to a text-to-speech  
audiobook in your home without paying the author or getting his or her  
permission. The question gets murkier if we're talking about selling  
or giving away those photos, MP3s, and audio editions, but that's not  
what the Guild objects to - they say that the conversion itself  
infringes copyright.

2. Even if I'm wrong and it is an infringement to convert an ebook to  
a text-to-speech reading, Amazon's hands are clean, because the  
infringer is the person who presses the "read aloud" button - that is,  
the Kindle owner. Xerox doesn't have to make photocopiers that only  
copy public domain works. Apple doesn't have to make a version of  
iTunes that only rips CDs you own, and rejects ones you've borrowed  
off your mates. Microsoft can ship Windows without making sure that  
the files in the file-system don't infringe on copyright. The Mozilla  
Foundation can give away versions of Firefox, even though the browser  
can just as handily be used to download infringing material as non- 
infringing material.

But ultimately, the legality of the feature is irrelevant - as is the  
nonsensical discussion about whether the Kindle's text-to-speech is  
(or will someday be) as good as a commercial, human-generated  
audiobook (the answers being, "No," and "The day that artificial  
intelligence gives us perfect Kindle readings, we'll have bigger fish  
to fry than audiobook rights").

The reason it's irrelevant is that Amazon wants to get licenses from  
members of the Authors Guild in order to sell their books in the  
Kindle store.

And when Amazon goes to those members, they can simply say, "No, I  
won't let you sell my books because the Kindle has a text-to-speech  
capability and I don't like it." No need to go into bizarre, long- 
winded speculations about whether copyright law requires Amazon to  
build copyright enforcement into its devices, or whether Jeff Bezos's  
crack team of AI wizards at Amazon are about to unleash an army of  
superintelligent artificial voice-actors, sandwiched within the  
Kindle's slender chassis.

The Authors Guild can simply say: "We advise our members to withhold  
licenses from the Kindle store because we think the Kindle format is  
bad for our business."

Now, I happen to disagree with that position because I don't think  
that text-to-speech is a substitute for audiobooks for the majority of  
listeners, and because the value of text-to-speech is such that people  
will buy enough ebooks to offset any losses from substitution, and,  
most importantly, authors who oppose this feature look like grasping,  
greedy jerks and will alienate their readers.

Maybe I'm right and maybe I'm wrong, but the important thing is, we  
don't need new theories about copyright law to test the proposition.  
The existing, totally non-controversial aspect of copyright law that  
says, "Amazon can't publish and sell my book without my permission"  
covers the territory nicely.

But while we were all running our mouths about the plausibility of the  
singularity emerging from Amazon's text-to-speech R&D, a much juicier  
issue was escaping our notice: it is technically possible for Amazon  
to switch off the text-to-speech feature for some or all books.

That's a hell of a thing, isn't it? Now that Amazon has agreed with  
the Authors Guild that text-to-speech will only be switched on for  
authors who sign a contract permitting it, we should all be goggling  
in amazement at the idea that this can be accomplished.

After all, the Kindle customers who've already received their units,  
bought devices that were advertised as "capable of reading Kindle  
books aloud", not "reading some Kindle books aloud". The only ways  
that Amazon could accomplish this is:

1. If they had anticipated this outcome and secretly enabled this  
feature before shipping the Kindles - effectively engaging in false  
advertising, or;

2. If they can force you to downgrade your Kindle to remove the  
feature (possibly by ending your ongoing access to the Kindle store,  
or even by terminating your access to your existing Kindle books).

Neither of these should inspire confidence in the Kindle as a long- 
term device. Dropping $359 (£251) on a device whose features are  
subject to the outcomes of ongoing negotiations to which you are not a  
party is, frankly, nuts.

Would you buy a car if it was known that your air-conditioner and  
stereo system could be remotely disabled? Or if we suddenly discovered  
that the manufacturer could remotely lock you out of your boot in  
order to assuage some pressure group who'd rather you no longer be  
allowed to carry parcels around? It's one thing for next year's model  
to ship without the fantastic stereo system but it's another thing  
entirely for the manufacturer to rip it out of your dashboard after  
you've bought it.

If I were running the Authors Guild, this would be my number one  
issue: we can't afford to allow our books to be used to lure readers  
into purchasing devices that can turn against them. Because whatever  
bad feelings arise from this, some of them will surely be visited upon  
us.

Novelists know that a gun on the mantelpiece in act one is apt to go  
off by the third act. If we want to talk about potential outcomes for  
Amazon, then one in which the company disappears, changes hands, or  
loses its mind should get far more consideration from us than the  
possibility that it will mastermind major technological breakthroughs  
in machine-speech synthesis.

And on the day that Amazon goes crazy, goes under, or goes to the  
dogs, our readers - the people whose long-term goodwill we depend on  
to earn our livings - face the possibility of having their Kindles  
arbitrarily downgraded, refeatured, or otherwise modified to attack  
them and the books they've bought from us.

If I were running the Authors Guild, I'd be sounding the alarm to my  
members to license their ebooks only for formats and devices that give  
our readers - our customers - a fair deal that makes them glad to have  
supported us.

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