Kindles and "creative machines" blur boundaries of copyright - Ars Technica
The Authors Guild has invited plenty of ridicule by claiming that Amazon's Kindle 2 violates authors' rights by reading works aloud. But buried in their argument is a surprisingly tangled puzzle for copyright law in the digital era.
The Authors Guild has come in for a fair amount of ridicule since their executive director, Paul Aiken, claimed that the speech-to-text feature of Amazon's new Kindle 2 violated copyright law, telling the Wall Street Journal: "They don't have the right to read a book out loud." On Wednesday, Guild president Roy Blount Jr. took to the pages of The New York Times to defend his group's much-mocked position, arguing that the device would "swindle" penurious writers out of precious audiobook revenue. Whether or not you think that's likely, however, probing the Guild's objections reveals one more way that advancing technology may blur traditional categories in copyright law.
The short version of Blount's argument is that the right to create an audiobook version of a text is generally more valuable than the right to distribute an e-book, and that the Kindle effectively gives Amazon a free twofer: having bought the cheaper e-book right, it gets to offer customers a multimedia package that includes an audiobook rendered on the fly.
While proponents of this argument have had some trouble explaining why it's OK for a human to privately read a bedtime story out loud, but not for a machine to do it, there is at least this potential distinction: private human reading is not a for-profit product that presents a realistic alternative to publisher-authorized audiobooks. The Kindle may not produce the kind of rich dramatic reading a human actor might record, but advances in text-to-speech technology make it a far more passable alternative than the sort of stilted Cylon centurion delivery that represented the state of the art just a few years ago.
For the moment, the Authors Guild seems to be hoping to rely on contract law rather than copyright litigation, urging authors and publishers to condition their licensing of e-book rights on Amazon's blocking the read-out-loud feature unless a separate performance license is purchased. It's not hard to see why: under the standard established in the seminal Betamax case, the Kindle's out-loud feature would almost certainly be deemed to have "substantial noninfringing uses," leaving the company in the clear, and publishers with the unrealistic recourse of trying to sue individual owners who "perform" their books without permission.
How to create a derivative work
But there is an implicit copyright claim lurking in the Guild's objections: US law assigns creators and publishers the exclusive right to prepare (or authorize) "derivative works" based on their creations—such as audiobooks, translations, and dramatic adaptations. But that raises a surprisingly tangled question: What does it mean to create a derivative work? As Sherwin Siy of Public Knowledge points out, the Guild has somewhat misleadingly spoken of "audio rights"—but there's no such thing as an "audio right" per se, only the right to prepare a "work," such as a particular (independently copyrightable) audio recording. But does the Kindle create a "work"?
Michael Kwun of the Electronic Frontier Foundation argues that it doesn't, for two reasons. First, he says, a "derivative work" must be a work of creative authorship: He cites the copyright statute's definition of "derivative work" as "a work based upon one or more preexisting works . . . which, as a whole, represent[s] an original work of authorship."
But there's ambiguity hiding in that ellipsis. The full text is:
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 second sentence imposes an originality requirement as the criterion for determining when revisions and annotations amount to the creation of a derivative work, not as a general requirement of any derivative work. Kwun invokes the hoary maxim "No creativity, no copyrightability," but this conflates the standard for independent copyrightability of a work with the criteria for infringement of the derivative work right. As legal scholar Paul Goldstein notes in his definitive essay on derivative works, "the [Copyright] Act does not require that the derivative work be protectable for its preparation to infringe." In other words, a work insufficiently original to be eligible for an independent copyright may still be an infringing derivative.
Consider, for instance, the Ninth Circuit Court of Appeals' decision in the 1984 case Lone Ranger Television v. Program Radio. Program Radio edited for broadcast old recordings of Lone Ranger teleplays that had fallen into the public domain. Thanks to a quirk of the law, however, the original scripts on which the programs were based remained under copyright. Though the edited versions clearly fell far short of the originality that would be required for an independent copyright, the Court held that Program Radio had violated the authors' exclusive "derivative works" rights. While the record is mixed, subsequent cases have at least been open to the category of "unoriginal" derivative works.
And Kwun concedes that his argument has some counterintuitive results: he told Ars that, on this theory, a translation of a text into another language—a paradigmatic example of derivative work—would not count as such if the translation were produced by an algorithmic software program like Google Translate. While no author has yet raised this claim, as far as I know, it might be argued that Google's on-the-fly translations of Web pages constitute large-scale production and dissemination of "derivative works." One interesting, and equally counterintuitive, wrinkle is that it might actually make an enormous legal difference whether the translation is performed on Google's servers and transmitted to the user, or by plug-in software on the end-user's home computer.
That's OK, Kwun has a backup argument with more solid support in case law. In the 1992 case Lewis Galoob Toys v. Nintendo of America, the Ninth Circuit found that Galoob's Game Genie—a device interposed between a game cartridge and the Nintendo console to allow users to tweak gameplay—did not create infringing "derivative works" of Nintendo's games because it did not "incorporate a portion of a copyrighted work in some concrete or permanent form." In other words, Game Genie altered the gaming experience, but did not actually create a new modified copy of the game. The Court codified that principle in Micro Star v. FormGen Inc., making the existence of some kind of nontransitory copy of a work a prerequisite for the creation of a "derivative."
Kindles and "creative machines" blur boundaries of copyright - Ars Technica
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