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.