Text-to-speech: Amazon caves

There’s been a lot of interesting copyright controversies lately.  Given the economic realities of betting an entire business on a lawsuit with an uncertain outcome, though, the controversies almost never seem to reach a judicial determination of legality or illegality.

Unsurprisingly, it looks like the controversy over text-to-speech in the Kindle 2 is going to suffer the same fate.  The New York Times is reporting that Amazon is making changes to let authors decide whether they want to enable the text-to-speech feature on a title-by-title basis (h/t slashdot):

Amazon maintains that the feature is legal and that it would in fact increase the market for audio books.

But it said, “We strongly believe many rights holders will be more comfortable with the text-to-speech feature if they are in the driver’s seat.”

Oh well.

Wil Wheaton is man enough to take on a disembodied electronic voice

First of all, Wil Wheaton is awesome.  I think I was one of the few people who didn’t greatly detest Wesley Crusher, so I had no great bias against him.  However, he won my heart as the Best Geek Ever in his Slashdot interview, when he related this tale:

Once, I was working on a movie in Kansas. We were driving from the set to the house where we were all staying, and it was close to a 40 minute drive. Now, 40 minutes in a city is nothing. But 40 minutes along a rural highway seems like an eternity. So we’re driving along, and I ask my friend if we’re there yet, and he says no, and I say, “Jesus. By the time we get there, the kid won’t even be dead anymore.” There is this pause in the car, and one of the other actors says, “Dude. Did you just quote your own movie?” I answered in the affirmative, and he says, “That was very cool.”

Anyway, Wil responded to Cory Doctorow’s comments about the Kindle:

But what if we’re all wrong? As an author, performer, and consumer of audiobooks, what does this mean for me?

To find out, I picked a short passage from Sunken Treasure and read it. Then, I took the identical passage, and let my computer read it. I recorded the whole thing and put together something I call “Wil Wheaton versus Text 2 Speech” so you can hear for yourself.

I haven’t downloaded the MP3, but from the comment thread, it sounds like people don’t exactly believe that the Authors Guild has much to worry about.

Facebook’s latest attempt at “friendliness”

Facebook just released a statement concerning future changes to their Terms of Use:

Beginning today, we are giving you a greater opportunity to voice your opinion over how Facebook is governed. We’re starting this off by publishing two new documents for your review and comment. The first is the Facebook Principles, which defines your rights and will serve as the guiding framework behind any policy we’ll consider—or the reason we won’t consider others. The second document is the Statement of Rights and Responsibilities, which will replace the existing Terms of Use. With both documents, we tried hard to simplify the language so you have a clear understanding of how Facebook will be run. We’ve created separate groups for each document so you can read them and provide comments and feedback. You can find the Facebook Principles here and the Statement of Rights and Responsibilities here. Before these new proposals go into effect, you’ll also have the ability to vote for or against proposed changes.

I suppose it’s nice to see that Facebook is trying to take the worries of its users to heart.  If you pay attention to the fine print, though, they are — unsurprisingly — not promising to really do anything.  More analysis after the jump.

Authors Guild President on the “Kindle Swindle”

Continuing the back-and-forth over the new Kindle’s text-to-speech feature, Roy Blount Jr., president of the Authors Guild, wrote an op-ed in the New York Times.  Along with coming up with a snappy, derogatory catch phrase (is the “Kindle Swindle” an argument against unfairly exploiting authors, or the next dance craze?  you be the judge!), he tries to clarify some of the things that worry the Authors Guild about this technology:

True, you can already get software that will read aloud whatever is on your computer. But Kindle 2 is being sold specifically as a new, improved, multimedia version of books — every title is an e-book and an audio book rolled into one. And whereas e-books have yet to win mainstream enthusiasm, audio books are a billion-dollar market, and growing. Audio rights are not generally packaged with e-book rights. They are more valuable than e-book rights. Income from audio books helps not inconsiderably to keep authors, and publishers, afloat.

This is the real problem for the Authors Guild: text-to-speech may not be copyright infringement per se, but it may pose a threat to the market for an extremely important part of their portfolio nonetheless.  Being able to allege copyright infringement merely gives them a lever to try to protect the market for this property.

He continues:

You may be thinking that no automated read-aloud function can compete with the dulcet resonance of Jim Dale reading “Harry Potter” or of authors, ahem, reading themselves. But the voices of Kindle 2 are quite listenable. There’s even a male version and a female version. (A book by, say, Norman Mailer on Kindle 2 might do a brisk business among people wondering how his prose would sound in measured feminine tones.)

And that sort of technology is improving all the time. I.B.M. has patented a computerized voice that is said to be almost indistinguishable from human ones. This voice is programmed to include “ums,” “ers” and sighs, to cough for attention, even to “shhh” when interrupted. According to Andy Aaron, of I.B.M.’s Thomas J. Watson research group speech team: “These sounds can be incredibly subtle, even unnoticeable, but have a profound psychological effect. It can be extremely reassuring to have a more attentive-sounding voice.”

The Author’s Guild might be overestimating this threat, though.  Sure, these voices get better all the time.  However, when interviewed about the new Kindle on the Daily Show, even Jeff Bezos admitted that the computerized voice is “a little freaky.”

Blount goes on to try to reassure people that the Authors Guild isn’t trying to go after blind people or parents reading to their children:

In fact, publishers, authors and American copyright laws have long provided for free audio availability to the blind and the guild is all for technologies that expand that availability. (The federation, though, points out that blind readers can’t independently use the Kindle 2’s visual, on-screen controls.) But that doesn’t mean Amazon should be able, without copyright-holders’ participation, to pass that service on to everyone.

Cory Doctorow isn’t convinced, though.  On Boing Boing, he writes:

Time and again, the Author’s Guild has shown itself to be the epitome of a venal special interest group, the kind of grasping, foolish posturers that make the public cynically assume that the profession it represents is a racket, not a trade. This is, after all, the same gang of weirdos who opposed the used book trade going online.

Doctorow posits that, even assuming that text-to-speech violates copyright, it would be hard to show that Amazon would be liable, as they are simply making the software and hardware capable of performing the infringement available, much like Sony’s production of betamax players.

If the Authors Guild cannot rely on a direct infringement theory, Doctorow may be right.  However, as discussed in my last post on the topic, the fact that Amazon is transmitting the e-book to the Kindle, and the possibility that the text-to-speech processing could be considered a rendering, the question of whether Amazon could be liable for infringing the right of public performance could be a difficult one.

Is Kindle’s text-to-speech a “public performance”?

Amazon recently released a new version of its Kindle E-book reader. Among the new features in the updated reader is the ability to have the reader perform a text-to-speech conversion to render the book in audio form. The Author’s Guild, however, was not amused:

Some publishers and agents expressed concern over a new, experimental feature that reads text aloud with a computer-generated voice.

“They don’t have the right to read a book out loud,” said Paul Aiken, executive director of the Authors Guild. “That’s an audio right, which is derivative under copyright law.”

Although there doesn’t appear to have been any sort of complaint filed yet, the Author’s Guild appears to be firing a warning shot across Amazon’s bow concerning this new feature.

David Post analyzed the issue a bit at the Volokh Conspiracy, and feels that Amazon has the upper hand here:

There’s no “audiobook” involved in the Kindle transaction. The copy that customers receive is just the (marked-up) text, in Kindle format – same as before. The sounds are generated on-the-fly when the user presses the right button — the sounds aren’t “fixed” anywhere, i.e. they’re not stored separately from the text itself. Therefore, no sound recording; therefore, no derivative work; therefore, no additional royalty revenue for the copyrightholder.

I think Post has a good point in stating that text-to-speech as implemented by the Kindle is probably not a derivative work.  Works covered by the copyright statute must be “fixed in a tangible medium of expression,” but the text-to-speech feature at best produces a transient audio representation of the full-text content.

However, I think that Post errs in assuming that just because there is no derivative work, there is no possible copyright infringement.  It’s possible that the text of the statutes provides infringement theories that do not rely on the creation of a derivative work.

OT: Fortieth anniversary of Tinker

40 years ago today, the Supreme Court issued its landmark ruling in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the case about the Vietnam-era black armband student protest which stated that “[i]t can hardly be argued that either students or teaches shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  As someone who was greatly inspired by studying First Amendment jurisprudence as an undergrad, I thought this merited at least a mention.

Daily Kos has a diary up by Mary Beth Tinker, one of the lead plaintiffs in the case, providing a look back:

I was scared the day I wore that armband to school, but I knew I had to speak up. The world seemed upside-down, but my friends and I had courageous role models to show us how to stand up for what we believed.  If you look around, there are many others like that, whether in your home, your school, your neighborhood, your town or even across the world.  You  can join them to change the world, and when you do your life will be meaningful and very interesting. It certainly has been for me!

Law firm trademarks – extra important to protect?

Recently, Jones Day filed a complaint against real estate web site Blockshopper.com, alleging (among other things) that the use of deep links to attorney bio pages on the Jones Day web site constituted trademark infringement.  Blockshopper.com chose to accept a settlement in which they simply were required to change the way that they link to Jones Day’s web site.

Blockshopper was probably in a bad position here; not only were they using the Jones Day marks for deep linking (which might have been OK), but they were also allegedly republishing content from the Jones Day site (including attorney bio pictures, which is most likely not OK).

I don’t have a lot to say about whether Blockshopper’s actions would have infringed any rights to the Jones Day marks, but it did lead me to wonder why we don’t hear about law firms defending their trademarks more often?  Here’s a quick thought experiment / question for the masses.

Law firms (in WA, anyway) generally have an ethical duty to not conduct business along with nonlawyers, to prevent the unlicensed practice of law by nonlawyers and to prevent client confusion.

In trademark infringement actions, the rights-holder may allege that the unauthorized use of the mark leads to a confusion of source.  That is, a consumer may think that the product produced by the infringer is actually produced by the rights holder.

If such confusion was taking place, doesn’t that implicate the law firm’s ethical duties?  That is, if a consumer believes that an infringer is actually a law firm (or authorized by the law firm to conduct business under its marks), then don’t the same ethical considerations relating to not sharing office space and store fronts with nonlawyers apply?  Doesn’t the infringement make it possible that consumers could be confused into accepting legal advice from unlicensed individuals?

Admittedly, this is a somewhat farfetched idea.  However, if true, it seems like law firms that hold trademarks have an extra incentive to aggressively police infringement of those marks.

The definitive answer in the Obama poster debate

Stephen Colbert recently hosted a debate between David Ross, former Director of the Whitney Museum, and Stephen’s brother Ed, a partner at Kenyon & Kenyon who specializes in copyright.  This debate produced what I think is probably the definitive answer on how the Shepard Fairey copyright debate should come out.

The money quote:

STEPHEN: Who do you really think is right?

ED:  Who’s paying me?

i can haz acceptance?

I saw this on Boing Boing, and felt I had to share.  Long story short: some woman built a contraption to let her cat click her mouse, and purportedly create unenforceable EULAs:

As he is not a legal entity, I don’t really know how kitty’s agreements would stand up in court, but I like to think he would be responsible for any breaches of contract, assuming the agreement is even enforceable. After all, he is not even of legal age, at least in human years.

How adorable.  Simba is clearly way more intelligent than most other cats, too, what with being able to spell properly and write in cursive and all that.

I realize that this was a joke (and another reason to post cat pictures on the internet, one of the founding reasons for the invention of the internet, along with viewing pornography and arguing about professional wrestling), but I can’t imagine that this EULA wouldn’t be enforceable.  Sure, the cat pressed the button, but the user rigged up a contraption and enticed the cat to stand on it.  Seems to me that’s enough action to show consent, as the user could have just as easily not rigged up the contraption or enticed the cat.

On the other hand, though, maybe they’re on to a novel theory: so long as you don’t physically come in contact with the keyboard or mouse, maybe you can’t be held accountable for anything that happens through your computer!  Time to go buy a pair of gloves and fire up BitTorrent!

Quick thought about Facebook’s EULA

I’m working on a longer post about Facebook’s EULA, but one thing about this whole mess deserves separate comment.  A recently released comment by a Facebook spokesman states the following:

We are not claiming and have never claimed ownership of material that users upload.

OK, so, Facebook doesn’t “own” user submitted content.  That’s great.  However, they take:

an irrevocable, perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute such User Content for any purpose, commercial, advertising, or otherwise, or in connection with the Site or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Content, and to grant and authorize sublicenses of the foregoing.

Uh… so… they can do basically whatever they want with it, including using it in their advertising, selling the right to use it to other people, basing derivative works off of it, etc.  But at least they don’t claim to own it!  Yay!

Also, both the old version and the new, controversial version of the Facebook EULA have been made available in the EULA gallery.