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Why Amazon Was Wrong to Back Down from Authors’ Guild

Amazon unveiled Kindle 2.0 a few weeks ago and with it the announcement that the Kindle 2.0 would have the ability to convert the text to speech. This feature has been referred to as TTS. Almost immediately, Authors’ Guild voiced dissent over TTS. "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." Roy Blount, Jr., the president of AG, authored an editorial calling it the “Kindle Swindle” because the TTS was employing an audio function without paying for it. Amazon has given up the fight without a whimper saying that the TTS feature will be allowed only with publisher approval.

In the eye’s of content creators, Author’s Guild might seem like a savior. After all, it sued Google and won a huge settlement for itself. Part of the $125 multimillion dollar settlement was the creation of the Book Rights Registry. The Registry was set up and paid $34.5 million and for each payment made to the author through the Google Settlement, the Book Rights Registry gets a portion of that payment. So, over 20% of the entire settlement was the creation of the BRR. Conveniently, the BRR is set up to a) continue to generate revenue from Google Book Ads at the expense of authors and b) to manage a rights database and c) to moderate disputes between rights holders.

Suffice it to say that I’m skeptical about Author’s Guild.

Most of the commentary against the Kindle TTS is not that it’s a valuable substitute for audio books right now, but that some day it will be. Roy Blount, Jr. wrote

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.

Now it may be that Blount doesn’t know or care what the copyright law it, but the fact is that there is no “audio right” as he likes to use in the New York Times editorial because the “audio right” is no more than a derivative right of the original copyrighted work. When it comes to a book, the copyrighted work is the content of the book itself, not the sound recording. A sound recording is its own copyrighted content. The TTS cannot infringe on the book’s audio recording, only on the right of the book’s copyright holder to derivative audio of the book.

Infringement requires the publication of a copyrighted work in an improper way. The definition of publication includes, “[t]he offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display.” The Copyright Act further defines public performance:

To perform or display a work "publicly" means -‘

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.

The Kindle itself does not violate any of the copyright holder’s bundle of rights. Instead, copyright holders can only argue that the Kindle enables the end user, readers like you and I, to violate the copyright holder’s right to public performances of their works. At best, Amazon would be vicariously/contributorily liable for the end users misuse of the Kindle TTS.

The US Supreme Court addressed the issue of Sony’s Betamax’s copyright capabilities: ” If vicarious liability is to be imposed on Sony in this case, it must rest on the fact that it has sold equipment with constructive knowledge of the fact that its customers may use that equipment to make unauthorized copies of copyrighted material.” Sony v. Universal.

As Courtney Milan stated on her blog, the reader is sold her own set of rights with the book. In the case of physical books, she can resell the book, share it, or even scan it in and create a digital copy of the book. The ability to utilize software to read the book aloud in a private, single person performance, is not a) publication or b) a violation of the derivative copyright

If we look back at the time shifting case of Sony v. Universal, I think we can seem some guideposts for interpreting this issue. Universal sued Sony arguing that its recording capabilities of the Betamax constituted infringement. First, the Kindle itself is used for broad legitimate and unobjectionable purposes. Ditto for the TTS, even assuming that the TTS would somehow be infringing. The TTS software is no per se violative because it can be used with so many items not under copyright.

Nor do I find that the DMCA applies to restrict the use of TTS because DMCA applies to copyright circumvention. In other words, you have to show that the underlying right is copyrightable. In this case, the right of a reader to have a book read aloud in the privacy of his home is not a derivative right of the copyright holder.

Second, the Kindle is used in the privacy of one’s home or by a single user. Even if the TTS would be read to a small group of people in one’s home and not in public, it would still fall outside the confines of the Copyright Act.

Third, there is no showing that the robotic TTS voice will reduce the market for the audio books. I don’t care that someday it might, today it won’t and the court isn’t going to decide an issue based on what someday technology may or may not be able to accomplish. Someday, AI will write genre fiction books and so we must put a stop to AI technology right now!   (and if you dispute this, then why are you saying that individual audio book performers are so easily replaceable).

Fourth, there is a societal benefit. Blind readers want the absolute right to read what book they want, when they want. One of my readers complains to me that she has to wait until the book shows up on a sight impaired reading website or has to find someone to help her strip the DRM or find a pirated book.

What AG is trying to do is limit the reader’s use of a product and basically turn digital books into leases. As digital book owners, we don’t have the right to share the book; to resell the book; to move the book from one device to another; and now private performances of the book for non commercial use are being limited single handedly by AG. There is simply no difference in the Kindle reading aloud to my kid and my reading aloud to my kid. They are both performances of copyrighted material accomplished in the privacy of my home.

Rather that seeing digital technology as a way to expand monetary gain, AG is trying to suppress the technology in a time of declining readership and for what? By restricting the reader’s legitimate rights when circumvention of the software locks are easily obtained, the AG’s actions are only suppressing legitimate sales. After all, why pay for a legitimate version when an illegitimate version allows the readers to utilize the full panoply of their legal rights?

Jane Litte is the founder of Dear Author, a lawyer, and a lover of pencil skirts. She spends her downtime reading romances and writing about them. Her TBR pile is much larger than the one shown in the picture and not as pretty. You can reach Jane by email at jane @ dearauthor dot com

109 Comments

  1. Courtney Milan
    Mar 01, 2009 @ 06:31:02

    I have to say, I’m totally okay with this solution.

    Yes, I totally believe that text-to-speech does not infringe on copyright. That being said, I think the point when I finally saw the merit in the argument was with a comment that John C. Bunnell made on the Smart Bitches thread.

    This is not about copyright infringement; it’s about commerce.

    To figure out why this doesn’t upset me, imagine that, instead of unveiling text-to-speech rights, Amazon instead unveiled a used-Kindle-book marketplace–that is, once you were done reading the book, you could relinquish it from your Kindle and resell it on Amazon with a “buy it used” button. Readers, in fact, do have the right to resell purchased works–and you have that right explicitly by statute, not just implicitly by assumption.

    And yet I can imagine every publisher and author in the world recoiling, and swiftly dialing up Amazon and saying, “Wait a second — no, no, no, when we agreed to let you sell our hardcovers for $9.99, we did not imagine you were then going to turn around and undercut us by offering the same work for fifty cents, which can be resold fifty times.”

    “Ha ha ha,” says Amazon, “too bad. Doctrine of first sale and all that.”

    “Ha ha ha,” says every publisher in the world, “too bad. If you’re going to do that, we hereby revoke our authorization for distribution via Kindle.”

    In other words, when Amazon entered into a contract with the publisher, there was a certain expectation between the two that they’d be selling the user the goods in a form that did not allow the user to exercise all the sticky little rights referred to in my post. Amazon added a sticky little right; people got upset; Amazon is now making it so that publishers and authors can opt into that particular sticky right.

    I don’t think Amazon had much choice–not because they would have lost in court, had they been sued, but because if Amazon is going to continue its campaign to dominate the ebook market, it absolutely has to have authors and publishers willing to provide it books. It already chaps my hide that the Kindle version of Connie Brockway’s So Enchanting is not up; it would absolutely infuriate me if the Kindle version of half the books I wanted were not available, and I’d probably stop using my Kindle.

    If Amazon went too far in the other direction–for instance, if Amazon only allowed me to read a book once, or didn’t allow me to make notes in it, or copy little clips from files–I probably wouldn’t have bought a Kindle. So the rights of users are also determined in the Marketplace.

    So essentially what Amazon has done is create a marketplace solution to a problem which is one of commerce, rather than copyright. It’s opt-in, and I’m sure there are plenty of authors/publishers who will opt in. And I suspect that there will eventually be empirical studies and test data people will figure out there’s little to fear in the option. Or, if there IS something to fear–we’ll see that, too. Amazon didn’t close the door; they set up a laboratory so that we can see where doors will get closed.

    (I think you can see this happening with iTunes–at first, everything had to be locked up tight. Then they instituted a few files that were DRM free. Now, tons of files can be found in a DRM-free format.)

    I have long suspected that the most interesting problems of copyright in this century will be ones of contract rather than copyright. This, I think, is proof.

    (Incidentally, I would like Amazon to allow Kindles registered to blind people, perhaps those who have registered with BookShare to read anything aloud, regardless of option–something that is surely legal under copyright law. That seems both fair and just.)

  2. Nonny
    Mar 01, 2009 @ 07:05:55

    This is my point of view, as an author and a reader.

    I seem to be in the minority amongst authors, though, given the number of horrified blog entries I’ve seen about the matter. I find it sad, because the majority of people likely to use TTS technology are the blind and visually impaired. There is very little romance and erotic work (and science fiction / fantasy, for that matter) translated into braille or audio books, beyond the best-sellers.

    I’ve seen some pretty awful things said in response to the blind argument. There’s one well-known author that basically said that she didn’t believe there were many that would read her work and thus it wasn’t worth the loss of her rights. Maybe I’m biased since I have known blind people, but I’d love for even one reader to have access to my work via TTS.

    It seems like such a non-issue to me that it’s not funny. TTS is nowhere near developed enough to infringe upon the audio derivative rights, and yet people are acting as though the sky is falling. Quit making mountains out of molehills. *sigh*

    /rant

  3. Jayne
    Mar 01, 2009 @ 07:23:12

    There's one well-known author that basically said that she didn't believe there were many that would read her work and thus it wasn't worth the loss of her rights.

    I guess she figures because they’re blind, they’re not going to know she’s flipping them the bird.

  4. Courtney Milan
    Mar 01, 2009 @ 07:32:45

    And just to make it clear: I don’t think TTS is infringement, I dislike DRM, I don’t think TTS will make a bean’s worth of difference in terms of audio rights sales, and . . . is there anything else? I don’t think so.

    But I understand that some people feel differently, and I’m okay with a solution that allows people to stick their toes in the water to test it first. I think the water’s just fine, but I also don’t think I need to push someone else in just because she doesn’t agree.

    The only part of this whole thing that really sticks in my craw is that now Author’s Guild can claim this as another “victory.” Can they be any slimier?

  5. Kimber An
    Mar 01, 2009 @ 07:42:24

    If nothing else, this has provided a ton of free publicity for Amazon. Like they really need it!
    ;)
    P.S. I’m neutral on the issue, because I don’t feel I’m educated enough on both sides.

  6. DS
    Mar 01, 2009 @ 08:28:41

    Neil Gaiman and John Scalzi have added new gloss to their halos. Other authors I once admired are a bit tarnished.

    I’ve written to Amazon expressing my disappointment and urging them to make it clear on the purchase page if the TTS rights are intact.

  7. Katie Reus
    Mar 01, 2009 @ 08:37:37

    I don’t think the AG put much thought into this before going through with the suit. TTS isn’t going to infringe on any author’s rights. As a writer (and reader) this whole issue is beyond ridiculous. The user is still purchasing the book so it’s not as if any revenue is being lost. If someone is actually able to read, why would they listen to a story on their Kindle instead? Answer: they wouldn’t. This whole thing seems very discriminatory toward the disabled and despite reading up on it, I still can’t comprehend AG’s purpose of this suit. I don’t see any benefit to authors or readers from this lawsuit other than limiting the disabled.

  8. Keishon
    Mar 01, 2009 @ 08:50:59

    Thanks for elucidating the points of this controversial topic. I can’t fathom what the other side of the arguement could be when you’re talking about limiting access to consumers who would benefit from TTS. And is it ignorance that there is so many disparaging commentary against TTS amongst authors and industry people or is it greed? Alas, there’s no one to argue or confront the issue since Amazon has decided not to act which is a shame, really. And since the Kindle itself is such a restrictive device it really comes as no surprise.

  9. Keishon
    Mar 01, 2009 @ 09:07:20

    I take that back about Amazon (regarding their restrictive policies). I remember reading Blount’s argument to the AG about withholding their ebook rights and etc that I think you posted so I’m sure that trickle down effect of strong arming Kindle into giving up the TTS has a lot more to do with it that than what I suggested above. Sorry. *running away now*

  10. Jane
    Mar 01, 2009 @ 09:09:23

    @Keishon: In a Slate article last week, a columnist spoke of the dangers of ceding so much control to Amazon in a proprietary device. Ironically, AG’s insistence on removing the TTS only furthers the power that Amazon has because of Amazon’s restrictive policies. Amazon’s closed ecosystem, as you point out, can only allow them to leverage more power against the publishers.

  11. Alisha Rai
    Mar 01, 2009 @ 10:16:25

    or has to find someone to help her strip the DRM or find a pirated book.

    I’ve heard this too. I’d much rather have the royalty from selling my kindle version to a person who may, instead, seek out a pirated book.

  12. Anion
    Mar 01, 2009 @ 10:21:53

    Never mind. What’s the point.

  13. Lori Borrill
    Mar 01, 2009 @ 10:38:50

    I keep wondering why no one is bringing this issue up with Adobe. They’ve had a text to speech feature on PDF Reader forever.

  14. Nonny
    Mar 01, 2009 @ 10:43:19

    Lori, that’s exactly my question.

    Adobe, and other programs, have had this precise feature.

    Why is it only now such a big deal?

  15. Areader
    Mar 01, 2009 @ 11:11:53

    Adobe Text to Speech & Microsoft Reader Text to Speech are routinely turned off by drm blind publishers. I guess they want to rip off the poor blind person as much as they can.

  16. Robin
    Mar 01, 2009 @ 11:11:56

    And what about the word processing programs that have a speech to text feature?

    I disagree with the notion that this issue isn’t about or shouldn’t be about copyright, because from my perspective as a reader, it’s totally about the rights granted to me by the freaking US Constitution under copyright.

    I get that it seems like copyright only pertains to authors and publishers — that it only concerns the rights granted to authors and publishers — but that’s simply not the case. Copyright is and always has been about the *balancing* of different rights held by the public and by creators of works. And in this case, I think the balance is shifting too far away from the reader.

    And while I know that some authors feel that TTS degrades the value of an author’s work, as a reader I find that argument extremely frustrating, first because it’s being conflated with the copyright issues and second because it’s a subjective valuation that is no more unilaterally true than my assertion as a reader that TTS does not diminish the value of an author’s written text or the audio performance of a book. Authors may feel this way, and they may fight this battle based on that feeling, but it’s still a feeling, and opinion, and it doesn’t necessarily conform to the rights that readers are granted one little bit. And as a reader, I’m going to fight to retain my rights, because they are already eroding via DRM, the DMCA, and the hideous, hideous copyright legislation currently sojourning in and around Congress. For me, this is about rights, and in the same way authors are worried about their rights, I’m worried about mine.

    TTS on the Kindle does not constitute an audio *performance* and since audio rights aren’t even derivative rights, as Jane pointed out, there’s already a huge muddle in the way the Author’s Guild has tried to make its case.

    I’ve seen some comments about the horrible evil Amazon monopoly and about how they should not be allowed to build their evil empire any further through the TTS function on the Kindle. But to me, this is no more about Amazon than the Cassie Edwards plagiarism discovery was about the long-standing frustration that the Smart Bitches had with Edwards’s books. I am not a big fan of many things Amazon does, but I’m not going to vote to sink my own Constitutionally granted rights as a reader because I don’t want to support the Amazon monopoly. IMO those are two issues that are and should remain separate.

  17. Courtney Milan
    Mar 01, 2009 @ 11:58:38

    @Robin: I don’t think we disagree all too much. I am fairly radical on reader’s rights (yes, I know I’m an author–but I’ve been radical on copyright for far too long to give that up just because I happened to sell a book). It’s not that I’m not worried that Amazon has arrogated to itself the right to determine what a reader can and can’t do with its books. I like open. I really like open.

    (Incidentally, his whole thing would have been a non-freaking-issue if Amazon had just opened its API and allowed plugins. If users had come up with this particular add-on, nobody would have said boo to Amazon. So let that be a lesson to you, Amazon. Open your API and the features will come.)

    But here’s what I’m worried about: I am worried that the more people press to get courts to broaden (or at least reaffirm) rights that readers have always had, the more will be taken away by legislative fiat. When readers and content creators had competing concerns about piracy, lo and behold we got the DMCA. The Orphaned Works Act dies on the vine; instead, congresspeople honestly talk about sending those with one infringing file on their computers to jail.

    The end result is that I am radical on rights but extremely incremental as to the remedy. I am fairly certain that the more content creators close their grasp, the more star systems slip through their fingers (to mangle Star Wars). What that means is that every time I have a choice, I want to open my grip as much as possible. And that means that I support choice–between open and closed–every single time I see it.

    If our government, whether it be the judicial or the legislative branches, gets to make the choice as to whether content should be open or closed, they are going to choose closed. I have little doubt about that. They’ve done it every single time in the past, and even if you can get a few stray judges to come your way, Congress will just find a way to undo what they wreak. And so what I’m fighting for is the chance to be right–the chance to give content-creators the choice between open and closed.

    If all we have is closed, we’ll get increasingly draconian laws, as content creators keep returning to Congress. “Deary me!” they’ll cry. “We’re losing all these star systems! We need to upgrade to a new, tighter grip!” And they’ll get it, because lo and behold, who can deny the star systems slipping away?

    Choice means you have hard, unassailable data. It means that you can have people opening their grip, and those people will prevail in the marketplace–I truly believe that they will, because I truly believe most people are like you: They know what they want, they know what they deserve, they’ll pay to get it, and if they have a choice, they’ll opt for open every time. Open is going to win, so long as it is not legislated into oblivion. I have faith in the enduring power of openness, and so I’m willing to accept incremental steps towards it, simply because I think it is so powerful that, given enough time, it will win.

    And that’s why I’m cautiously optimistic about Amazon’s decision. It leaves choice open. Is it as good as a declaration for readers? No, no, a thousand times no. But it’s nowhere near as bad as the worst-case scenario here. Which would be, Author’s Guild filing suit, losing, and then lobbying Congress with their $millions from the Google Settlement to pass a draconian Author’s Text-to-Speech Rights bill, thus foreclosing choice on the matter altogether. Ugh. It could happen.

    I think you and I agree on the place we want to be; we’re just arguing for different paths to get there.

  18. kirsten saell
    Mar 01, 2009 @ 12:45:10

    Amazon added a sticky little right; people got upset; Amazon is now making it so that publishers and authors can opt into that particular sticky right.

    Amazon did not add that sticky little right. That sticky little right has been around for ages and no one batted an eye until Amazon stuck its finger in the pie.

    You know, I’ve heard from readers and authors (on both sides) in this argument, but publishers–to my knowledge–have remained oddly silent. If publishers think Amazon is infringing, you’d think they’d have something to say about it. But then, I’m sure epublishers have been aware of TTS all along, and its inclusion in digital rights is implicit. And maybe NY publishers, bless their hearts, are aware of it too. I mean, the digital rights clause of my contract does stipulate “including but not limited to…multimedia…screen display…or otherwise”. It says nothing about “text only”.

    As a writer (and reader) this whole issue is beyond ridiculous. The user is still purchasing the book so it's not as if any revenue is being lost.

    Since works provided for the blind do not generally pay royalties to the author, one would think TTS is pretty much revenue/value gained, all around.

    If Amazon goes ahead and allows authors/publishers to disable TTS on Kindle files, I might have a new criterion for choosing whose books I want to spend money on, and whose I don’t–depending on whether TTS is enabled or disabled on the Kindle version. Because being friends with a few vision-impaired people who use TTS to read, and whose money goes into authors’ and publishers’ pockets through the ebooks they buy, I’m happy to support them by voting with my dollars.

  19. Allen Noren
    Mar 01, 2009 @ 13:00:21

    The part below is the same argument the NRA and gun makers use; It’s not the weapon that is the problem, but the person who uses it. The same argument is used to defend Pirate Bay; “We’re just a listing, and it’s the actions of the users who are or are not at fault.” I’m not saying either is right or wrong, but these came to mind as I read this. Ironic.

    “The Kindle itself does not violate any of the copyright holder's bundle of rights. Instead, copyright holders can only argue that the Kindle enables the end user, readers like you and I, to violate the copyright holder's right to public performances of their works. At best, Amazon would be vicariously/contributorily liable for the end users misuse of the Kindle TTS.”

  20. kirsten saell
    Mar 01, 2009 @ 13:06:36

    The same argument is used to defend Pirate Bay; “We're just a listing, and it's the actions of the users who are or are not at fault.” I'm not saying either is right or wrong, but these came to mind as I read this. Ironic.

    Ironic but apt. Unless you want to do away with stuff like, um, tape recorders, VCRs, DVD and CD burners, Tivo, photocopy machines, scanners, personal computers and the entirety of the internet.

  21. Shannon C.
    Mar 01, 2009 @ 13:16:06

    @Nonny:

    There's one well-known author that basically said that she didn't believe there were many that would read her work and thus it wasn't worth the loss of her rights.

    Well, *this* blind reader is glad you didn’t name names, because she for damn sure wouldn’t buy any of that author’s books with a reaction like that.

    I would much rather legitimately be able to purchase any book I wanted than have to resort to ebook piracy. I read a lot. I think my money is as good as anyone else’s, and I just don’t understand why authors wouldn’t *want* my money, which is absolutely how this whole situation makes me feel.

    I would be fine, incidentally, with Kindles being registered to blind users, and with a partnership going up between Amazon and Bookshare, since I’m sure I would get more out of having talking menus on the Kindle than my sighted peers. And I think something like that needs to happen, because, whether I like it or not, Amazon’s monopoly has already started and I want to take advantage of it.

  22. Courtney Milan
    Mar 01, 2009 @ 13:21:19

    @Allen Noren: No, there’s a difference.

    Saying Amazon is vicariously/contributorily liable does put Amazon at fault–just not at direct fault. The NRA/Pirate Bay are trying to disclaim fault all together.

    Even the question of whether Grokster infringed on copyright was not a question of direct infringement; the question was whether it vicariously/contributorily infringed on copyright. The users of Grokster directly infringed on copyright; Grokster only helped them along. If the users had not directly infringed on copyright, Grokster could not have been held liable.

    But indirect fault is still fault.

    The reason this is a salient point is not that it clears Amazon from fault, but to say that Amazon cannot be at fault unless readers are *also* at fault. It just can’t be the case that Amazon is doing something horribly wrong but readers are completely innocent. Amazon is only a wrong-doer if it piggy-backs on direct copyright infringement by readers–so it’s disingenuous to try to blame Amazon but exonerate readers. You can’t blame Amazon without pointing the finger at readers–which is why readers are *right* to take this personally.

    @kirsten saell:

    Amazon did not add that sticky little right. That sticky little right has been around for ages and no one batted an eye until Amazon stuck its finger in the pie.

    Yes, you’re right. I stand corrected. I’m guilty of vast oversimplification. The thing is, there are rights granted to you by statute and by the US constitution, and then there is the exercise of those rights, which may be circumscribed by technology. These are not the same thing, but I’ve been conflating them for the sake of efficiency. They shouldn’t be conflated. What I meant was: on prior versions of the Kindle, the technology did not allow you to use TTS, thus balking exercise of a sticky little right; but now they added the ability to exercise it.

  23. LindaR
    Mar 01, 2009 @ 13:31:58

    Jane, this is excellent argument on your part (and yes, I mean the verb argument as opposed to “an” excellent argument).

    You won me over. I see now that the TTS is integral to the Kindle mechanism of access to the content the reader has bought. TTS is not a performance at all, public or private, any more than the letters on the page are a performance.

    Wow. It feels kind of good (and weird) to change my mind about something.

  24. LindaR
    Mar 01, 2009 @ 13:50:09

    @Courtney Milan

    The users of Grokster directly infringed on copyright; Grokster only helped them along. If the users had not directly infringed on copyright, Grokster could not have been held liable.

    But indirect fault is still fault.

    Is this the Fagin Corollary?

  25. kirsten saell
    Mar 01, 2009 @ 14:01:23

    I think the difference between Pirate Bay and Kindle (or even the NRA), is that there are substantial non-offending, non-infringing uses for Kindle’s TTS (and VCRs and Tivo and DVD burners, etc) (and arguably for guns), while the only conceivable purpose of a pirate site is to aid copyright infringement.

    Add to that the fact that TTS’s “infringement” is a legal stretch at best. I don’t believe it’s infringement, because being aware of TTS when I signed my digital rights over to my publisher, I naturally assumed TTS was incorporated into them. If other authors were unaware of TTS, it falls on them (or their agents) to educate themselves on what they’re signing before they sign it.

    I keep asking, because I am curious, whether there is a “text only” or “screen display only” modifier in other authors’ contracts, and no one’s answered me thus far. I am genuinely curious. I’m also curious as to whether the term “multimedia” is incorporated into their digital rights clauses, because I would think TTS is probably covered there as well.

    Even if it isn’t, signing over digital rights of your work (even if only in book form) in formats that can be stored and accessed on computers (which have been TTS-capable for more years than I have toes), well, this would seem to me to include TTS as well.

    @ Courtney: LOL, don’t think I’m picking on you, because I’m not. And I wasn’t really referring to the fact that the right has been there all along, but that TTS has been around for the computer-age equivalent of an eon. It’s nothing new. So why is it only now, when Amazon stuck its big-ass, super-rich, platinum-and-diamond-beringed finger in the…oh, wait. Never mind. I think I just answered my own question.

    As for the question of fault, that was the whole basis of the Beta-max decision. You can’t blame the manufacturer for making something that could potentially, among its many non-infringing uses, be used by consumers to do something that may or may not constitute a violation of copyright.

    I, personally, don’t see using TTS as infringement. I see it as a way of exposing more people to my work, and potentially cashing in on that. I’d rather someone who finds reading difficult or impossible, for whatever reason, purchase my ebook (and put 40% in my pocket, cha-ching!) and use TTS, than wait (maybe forever) for it to come out in audio on CD, and then exercise their right of resale on those CDs, which could then be used by any number of other people without another penny coming to me. Or have them be forced to wait (again, maybe forever) until some committee somewhere decides that my work is worth the time and expense of being made available to the blind–again, with no royalty coming to me.

    And the argument is particularly moot when you consider that, whether someone is purchasing the audiobook or the ebook, I’m making money on the sale. It’s not like a reader opting to read my ebook with TTS means I don’t get paid.

  26. Courtney Milan
    Mar 01, 2009 @ 14:12:19

    @LindaR: Sadly, I don’t know what the Fagin Corollary is and Google doesn’t help.

    @kirsten saell: No clause in mine that says “on the page only”–my contract enumerates rights I give to the publisher, and it’s not as broad as some others I’ve seen–and I wouldn’t want to hazard a guess whether, assuming TTS was a protected right, the electronic grant of rights in my contract would include TTS. I could make an argument going either way. I would include the exact language in my contract for electronic rights but I’m pretty sure that it’s something my agent pushed for that is different from publisher standard, and so I wouldn’t want to disclose it without asking her if it’s okay first.

    In any event, I’m not sure that’s the right question to ask. If the reader automatically has the right to read aloud, my contract with the publisher can’t take that away from them. My contract deals with rights given to me by statute, which I then cede to the publisher. It can’t change rights the statute doesn’t give to me.

  27. Jill
    Mar 01, 2009 @ 14:19:02

    I really have to commend the guild. Frankly they are taking care of authors who already make so little and THANK YOU. Yes there are a few authors who make big money but A FEW. Generally without a day job, authors don’t make a living. We are pressured to write more and more, faster and faster. All for LESS and less. I would be curious to hear how much people think an author makes in an advance for a book. And with the technology changing our books are all over the net for people to read for free — same with audios. We have no choice but to protect ourselves or we have to say– its a hobby we can’t afford. I really think people do not understand this. Go to Publishers marketplace and when you see an advance that is 1-50k — most likely its 2k to 8k — 10k when the author is lucky. It GRADUALLY goes up IF you are in mass market and a genre that is thriving. Any backside profit won’t come for almost 2 years if EVER. We are taught not to count on that.

    The guild is simply trying to ensure writers keep writing. It’s like acting — only about 1% of the guild members make a real living at their craft. The rest are waiting tables. Any chance of income has to be protected.

  28. LindaR
    Mar 01, 2009 @ 14:24:30

    @ Courtney —

    oops, sorry! my tiny joke. Your comment made me think of Fagin (from Oliver Twist) as Pirate Bay and users of Pirate Bay as the pickpockets he trains.

  29. Courtney Milan
    Mar 01, 2009 @ 14:33:16

    @Jill:

    And with the technology changing our books are all over the net for people to read for free -‘ same with audios. We have no choice but to protect ourselves or we have to say- its a hobby we can't afford.

    This is why I find the Guild’s efforts utterly baffling. Why do they want to make it so that a pirated copy, which can be read aloud through text-to-speech with no problems, is superior to a purchased copy?

  30. kirsten saell
    Mar 01, 2009 @ 15:07:55

    Yes there are a few authors who make big money but A FEW. Generally without a day job, authors don't make a living. We are pressured to write more and more, faster and faster. All for LESS and less. I would be curious to hear how much people think an author makes in an advance for a book

    Uh huh. Because I’m one of those closet millionaires who only goes to work every day at the local Chinese place out of my secret love for the job.

    And I ask again, how is a reader opting to pay you for an ebook and reading it with TTS so very different from opting to pay you for an audiobook? Ooh, wait, there IS a difference. Audiobooks on CD can be resold again and again without another dollar hitting your pocket, whereas ebooks must be purchased new by each reader, thus keeping a steady stream of royalties coming your way.

    If your publisher is uninterested in paying you a decent royalty on your ebooks (I keep saying 25-40%, and yet I might as well be screaming underwater for all any NY authors seem to care), or enacting measures that are actually effective in combatting piracy (NOT DRM, but providing ebooks in a variety of formats that are EASY for consumers to access–i.e. no DRM–at a price that doesn’t insult them–i.e. less than mmpb), that’s a matter you need to take up with your publisher, not Amazon.

    Because even if TTS could recite an ebook with the deep, resonant tones and dramatic flair of James Earl Jones, as long as it reads in real time and doesn’t produce a copy, it still doesn’t constitute an audiobook.

  31. Jane
    Mar 01, 2009 @ 15:40:30

    @Jill Yes, I am aware of the advances for authors and the average royalty rate and the fact that authors don’t always make a living writing. But authors are only entitled to the rights that the law affords them. In this case, I don’t think that there is a right that the authors/copyright owners have in regard to the TTS function.

    Readers also have rights which is something that I think authors actually forget. We have legal rights once we purchase an item and one of those rights is to read the book aloud in our homes or in a non public performance. I.e., if I was in a coffee shop and reading the book aloud to a group for a commercial venture, that is likely violative of a derivative right but if I was in a coffee shop reading the Odyssey to myself (which is essentially what the Kindle does) then no rights are being violated. I’m merely exercise part of my bundle of rights.

  32. LindaR
    Mar 01, 2009 @ 16:05:50

    Note to self: much as my brain wants it, I don’t think I succeeded in making “argument” a verb. . .

  33. hope
    Mar 01, 2009 @ 17:33:52

    If Amazon had a guy record an audio book and included it with every purchase of a hardcover, then Amazon would be distributing something for which it has not purchased the right. It isn’t the Kindle that is infringing, and it isn’t the end-user who is infringing by listening, as much as it is Amazon infringing by distributing an audio book free with each purchase of an e-book. The fact that they have a computer reading it instead of a person doesn’t seem like a significant difference to me.

    Yes, TTS has been around for eons. I think that’s a really really important observation. Shannon C said she’d be happy to buy an e-book with TTS and pay someone the money for it–and isn’t that better than going to a pirate site.

    Yes, it is. And I think that in the very near future we will see e-books sold for the Kindle in two editions. For only a minimal extra fee, say a dollar, you can get the TTS version. I think Amazon figured out how to add the TTS feature, and they wanted to get paid for it, but knew that the market might balk at paying extra for something that they are used to having for free on their Adobe reader. What they have done is monetize TTS.

    What I think, is that the AG just got played by Amazon. By extension, the consumers of E-books got played, too. I don’t feel particularly bad about it, because I am hoping for some cut of that dollar you will pay for the TTS version of your e-book, and I am assuming that the market will keep that extra cost of TTS reasonable. I’m with Courtney Milan in approving of a way to monetize TTS for the author, and the publisher. Our old paradigms of making money are collapsing and this seems like a way to let the market find a new model.

  34. Jane
    Mar 01, 2009 @ 17:44:53

    @hope I see you advocating for the right of a publisher or retailer to charge a consumer for a right that the publisher/retailer does not have. Essentially the argument is for monetization of a right that resides with the reader with the initial purchase. If readers have to pay for rights that they should have anyway, what is the incentive to buy legitimate copies?

  35. hope
    Mar 01, 2009 @ 17:50:34

    You haven’t convinced me that readers have a “right” to a machine readable text. I may be reading in too much haste.

  36. Jane
    Mar 01, 2009 @ 17:52:28

    @hope: you point me to the law that says that a machine read text is a derivative work.

  37. Courtney Milan
    Mar 01, 2009 @ 17:52:41

    @hope: Er…. Courtney Milan’s position is odd and maybe a little too nuanced, but it is decidedly not “hey authors, let’s find a way to monetize TTS.”

    It is something more like this: “Yay, now some people can try to monetize TTS and then they will discover they get more money by not monetizing it, and this whole thing will go away.”

    Remember: Just because the star systems are slipping through your fingers, does not mean you need a tighter grip.

  38. kirsten saell
    Mar 01, 2009 @ 18:01:05

    The fact that they have a computer reading it instead of a person doesn't seem like a significant difference to me.

    There is no reasonable difference that I can see between having a person read me a book in real time, and having a computer/device/piece of software do it.

    And I see no difference between a computer taking that ebook text and converting it into a recording, and having a voice actor read the book onto a CD or tape.

    The second constitutes an audiobook. The first does not.

    People who signed away their digital rights while unaware of the availability of TTS on just about every computer in the known freaking universe have only themselves to blame.

    I’m also strongly against charging extra for a TTS-enabled ebook. (I know! We could call it the vision-impaired tax!) Sure, vision-impaired people in the States might be able to get around being monetarily penalized for simply being blind, but not every person who has trouble reading is blind, not every person who is blind lives in the U.S. and enjoys the benefits provided by the U.S. constitution, and the legal ramifications of charging more for specific rights that should already reasonably belong to readers of ebooks isn’t going to remain confined to Amazon and the Kindle.

    If anyone here believes a legal judgment against Amazon in this case will not filter down to every maker/provider of TTS, they’re either incredibly naive, or being purposely obtuse.

  39. hope
    Mar 01, 2009 @ 18:06:46

    @Courtney Milan,

    That is the model I am agreeing with. I think it is going to take some flailing to get to a new commercial model for authors. I don’t see it happening without the flail, and I think trying to legislate the flail might make a worse system.

  40. Evecho
    Mar 01, 2009 @ 18:33:26

    One issue I felt a little under defined (for my understanding) was the difference between a human being reading aloud and TTS, one being derivative and the other not. Add to the confusion, private home reading is not derivative but TTS always will be even though TTS is common software (By the way, can someone point me to a TTS for the iPhone?). Then I realised that a human being reading aloud for outside a private home or contracted to for an audiobook is a Performance, whereas TTS is a Function of a Programme. Am I wrong?

    As for copyright and the US constitution, I don’t know enough about that to accept that copyright is a fundamental right, but I do think copyright, being a man-made concept, needs to be continually defined.

    I’m enjoying this discussion.

  41. hope
    Mar 01, 2009 @ 18:33:58

    I’m not sure that I agree that it IS a derivative work. I don’t know that I agree with the Author’s Guild’s position, but I don’t think I need to in order to say that it is reasonable to charge people for a machine readable text of a book. There are other legal concepts in play beside copyright. If I license you to produce a book, and we sign a contract that stipulates that the book will be printed in green ink only, then you violate your contract if you produce it in black ink, don’t you?

    I am not a lawyer–etc, etc, and I think that only a lawyer could really answer you. I’ve read kirsten saell’s comment and I’m disturbed by the “won’t anyone think of children–er, BLIND people” nature of it. I’ve made sure that all my books are in Braille editions, which would be just heartwarming, if I didn’t also know the shockingly low rates of Braille literacy. It’s something I care about. All my books are also available in audio editions provided by The Braille Institute.

    Do you mind if if I plug them? Too few people realize that you can contact the Braille Institute and they will make audio tapes for you. It isn’t perfect. It takes time to get them done, but you don’t have to wait for the market to decide that the book you want to read is “worthy” of being made into an audio book. They can do audio books read with verve and they can do audio books read in as flat a tone as you like, because some readers don’t want their books read with verve–they don’t want their reading “interpreted” by someone else. The Braille Institute makes their copies under “Fair Use” provisions of the copyright law. They are careful not to infringe on the market of the works they produce. At this time, I don’t think (I’m really not sure) that they will use TTS to produce books. They don’t have the deep pockets to risk a lawsuit and the work they do is too important to have it tied up in court. I’m sorry if I went on to long, but as I said, it’s something I care about.

    http://www.brailleinstitute.org/

  42. Courtney Milan
    Mar 01, 2009 @ 19:10:55

    @hope:

    There are other legal concepts in play beside copyright. If I license you to produce a book, and we sign a contract that stipulates that the book will be printed in green ink only, then you violate your contract if you produce it in black ink, don't you?

    Yes . . . kind of.

    That’s true.

    The problem is, there are some things that you can’t contract for. Say, for instance, that I say I’m going to pay you $20/year for 200 years to license your intellectual property. We can make that contract . . . but once your copyright expires, the contract is over, and even if you go into court saying, “But she said she would pay me $20″ you have no recourse (At least I am pretty sure that is the case with copyright–I am 100% sure it’s the case in patent law, and can’t imagine it’s any different now.) Likewise, there is a doctrine of exhaustion, that says you can’t impose certain kinds of restrictions on items sold (again, I understand how this plays out MUCH better in the patent context than copyright).

    So the scope of the grant of intellectual property does, in fact, have some bearing on the scope of things a contract covers. I am not convinced that you could sell someone a book, with a contract that says “you may put this book on your shelf, but you may not read it.” Gee. What else would the book be for? This is kind of what I mean in my post about “sticky rights” (which has been inaccessible for most of today because my web host decided to go kablooey but I think it is up again)–there are some things that you just can’t parse out by contract. You can’t make a contract with someone that says, “you will not imagine a different ending to my book!” You can’t make a contract with someone that says, “you can have this book, but only if you don’t read it aloud to your kids.” The rights stick to each other: if you give someone a copy of the book, you must also give them the right to do certain things with the book.

    Where this gets tricky is when you add technology into the mix.

    Technology allows content creators to essentially create new intellectual property regimes for themselves, without needing to resort to contract. For instance, a well-recognized sticky right is the right to resell a product, but you can apply DRM to an ebook so that it cannot be resold, and so forth.

    You can create an ebook that actually parses out via technology what you probably cannot parse out by contract. Even worse–even though no contract in the world could have gotten you to relinquishing those rights, under the DMCA, it’s a crime to undo the technology to get the rights that were automatically yours.

    So that’s what we have here potentially: A technology that undoes a right that a copyright owner may not have been able to get you to relinquish by contract.

    At least, that’s how I understand the situation.

  43. Jane
    Mar 01, 2009 @ 20:15:16

    @hope: What I hear you saying is that you don’t know if anyone has the right to have the book read to you by a machine and so if the PTB want to charge for it and the author benefits then it is a win and no one is damaged.

    My point is that under the Sony v. Universal case, the right to have a computer read the text to me is part of the bundle of rights that I acquire when I purchase an ebook. You have to point me to the law that says otherwise in order for me to buy into your argument that content creators can take that right away and charge me for it.

  44. kirsten saell
    Mar 01, 2009 @ 20:49:36

    If I license you to produce a book, and we sign a contract that stipulates that the book will be printed in green ink only, then you violate your contract if you produce it in black ink, don't you?

    Which is why I keep directing people to read their contracts and look for terms like “screen dislpay only” or “limited to text only” or “video only”. Because if all it says is “in book form that can be stored and accessed on a computer, etc, etc”, and it was signed after TTS became common on personal computers and in reading software everywhere, I don’t think the author has a leg to stand on.

    And I do hate to keep bringing up the blind, but I know a few blind people who are avid readers of ebooks through TTS, so they are not a disinterested party. In another thread at SBTB, there was lots of talk about how blind people should just be happy with the books others deem worthy of conversion into formats they can use, or how a person reading is different (i.e. acceptable) from a machine doing it, because it’s difficult and inconvenient and basically a pain in the ass to convince an actual live person to dedicate hours of their day sitting and reading to you. Which translated, in my mind, to less independence for disabled people is a good thing. Sorry if I carried some of my umbrage over here from that thread.

    But dude, not every vision-impaired person reads Braille. It is cool that an author can request tapes be made–hey, will they do this even for erotica?–but it takes time. And even considering the blind have this option, not every person who would find TTS a valuable reading tool is sight-impaired at all. I’ve had migraines where even focusing my eyes was painful, and I would have appreciated TTS if I’d had to study, or read a blog, or check my email. And I know many disabled people who would rather use TTS than take advantage of charities like the Braille Institute because they value their independence and hate to rely on others. And honestly, why should they have to? Why should they be made to rely on the charity and goodwill of others when there is a ready tool on their desktop or ereader that can give them the same freedom of choice enjoyed by sighted people to read what they want, when they want without lugging around a special tape player?

    And finally, ebooks have been around for a long time. Ebook authors and publishers have coexisted with TTS for a decade, and no one batted an eye. But now traditional publishers and authors are in the ebook game, and they think this is all new and scary. Hence the ungainly stupidity of DRM, the pathetically high list prices and low royalty rates on many ebooks from traditional houses, and this latest brouhaha about TTS. I don’t know of any epublisher that puts DRM on their books, or charges more for e than print, or pays their authors less than 25% royalty on digital, or has even a tiny little problem with TTS. And these are publishers that make the majority of their money off of ebooks.

    But yet again, traditional publishing wants to take an already functioning model and cram, squash, smash, jam it into their own little world-view instead of taking their cues from the people who’ve been making a go of it for years.

    To which I have no reply but: Ebuks–Ur Doin it rong.

  45. kirsten saell
    Mar 01, 2009 @ 20:55:44

    And Courtney Milan, I think I love you…

  46. LindaR
    Mar 01, 2009 @ 21:17:24

    The way I understood Jane’s argument — which may not at all be what she was arguing, I admit — is something like this:

    When a reader buys a book in hard copy, she doesn’t pay an additional charge for her eyes to access the content displayed by the ink on the page.

    TTS is the aural equivalent of the ink on the page; why should the reader be charged extra for her ears to access the content displayed by TTS?

    Books on Tape is a different thing, having to do with performance. The author is paid for rights to make the recording, much like a playwright or scriptwriter.

  47. Shannon C.
    Mar 01, 2009 @ 21:20:54

    Hope,

    As an interested party who is also a blind consumer, I would like to respectfully ask what Braille literacy has to do with the price of tea in China? Because that’s a whole other thread topic that I’m sure we could go back and forth on for years.

    And yes, the Braille Institute does do good work. So do several other organizations. But again, I’m not seeing what they have to do with TTS.

    As a consumer, I don’t necessarily want charity. I just want equal, legal access. I want that for everybody that reads, no matter if they’re blind, dyslexic, fully sighted, or purple. That’s the only acceptable way I want this whole thing to eventually end.

  48. Jill
    Mar 01, 2009 @ 22:13:54

    Ebooks have been around time but only recently have they become such a major part of the shift in the industry. The people STEALING those ebooks is growing massively too. I’m sorry but if the technology that is already allowed cannot be controlled without this theft, don’t give away more. And the right to have something read by your computer shifts as technology shifts — the audio industry has grown as the cell phone and MP3 market has changed. And now authors cannot hardly get their books in stores for the distribution and bookstore financial issues. We have to protect the methods of selling books available. What a cell phone could do 6 months ago is different than what it can do now. There is cutting edge technology to download OUR BRAINS in the works. As for blind customers, they should have a program they are allowed to register with to get this service for free. That is different and I would never suggest keeping this from them.

  49. Shannon C.
    Mar 01, 2009 @ 22:25:16

    Jill,

    For what it’s worth, there are programs that exist where blind people do have access to *some* books. Bookshare comes to mind. But I also know of several blind people who participate in ebook piracy *because* the technology that is out there doesn’t allow them to read the books everyone else can, even if they are in an ebook format. I don’t want to be thought of as a charity case, nor do I expect to be able to read every book for free.

    I would like to think that if everybody had equal access to ebooks, at least some of the piracy that we’re seeing would stop. It worked for the music industry. Why not the publishing industry?

  50. kirsten saell
    Mar 01, 2009 @ 22:55:44

    Um, if NY expects people to pay 15, 20, 25, even 30 dollars for an ebook that has so much DRM on it that reading it is like jumping through flaming hoops, is it any wonder people steal the damn things? Not only are pirated books free, the pirates removed the DRM that made it virtually unusable to consumers. In other words, the criminals are supplying a superior product than the original.

    I have never, nor will ever, pay more than seven bucks for an ebook. I don’t care how good it is. I don’t care how much I want it. And if it has DRM, that DRM had better not intrude on my ability to access the book.

    But instead of making ebooks inexpensive and easy for legitimate readers to legally obtain, the response of traditional publishing is to jack up the price to levels that are stupidly unrealistic and treat honest consumers like thieves. Way to embrace the new market.

    As for not giving away more technology that makes it easier for people to read. Um, again, treating honest readers like thieves doesn’t endear you to them. And I don’t see exactly how TTS enables piracy, but maybe I’m just not looking hard enough…

  51. Flight into Fantasy » More on ebooks and text to speech
    Mar 01, 2009 @ 23:16:11

    […] the needs of blind consumers as somehow a separate issue when it shouldn’t be. In the latest post on this issue from Dear Author, a number of arguments have been floated in the comments regarding the blind. First and most […]

  52. Shannon C.
    Mar 01, 2009 @ 23:55:09

    @kirsten saell:

    And I don't see exactly how TTS enables piracy, but maybe I'm just not looking hard enough…

    Um, duh? Someone could totally record the TTS and using Naturally Speaking or similar voice recognition technology have the TS dictate the ebook onto a word document which they could upload to the Internets for everyone.

    Never mind how much *work* that would actually be. But it is an argument I have actually seen.

  53. kirsten saell
    Mar 02, 2009 @ 00:04:41

    Okay, I’m going to have to think up a suitable reply once I’m done laughing…

  54. Nonny
    Mar 02, 2009 @ 03:58:01

    Ditto Kirsten… I’ve used Dragon Naturally Speaking and while it does get better once it gets used to your voice, I don’t want to think about the (quite probably humorous) errors that would be made trying to transcribe Kindle TTS via DNS.

  55. hope
    Mar 02, 2009 @ 08:09:41

    Well, what I thought I said is that Amazon has played the very naive AG as a way to get people to pay money for TTS, and that I am not terribly upset about it. That I am not yet convinced that e-book readers have a “right” to TTS. And then I put in a link to The Braille Institute, because I’ve worked with them in the past and admire their work.

    What Shannon C heard is that Blind people should shut up and go back to their Braille books. So, I am apologizing for epic fail in the communication department. Shannon C. I didn’t mean that at all, and I am very sorry for the miscommunication.

  56. Stevie
    Mar 02, 2009 @ 09:16:42

    I wouldn’t dream of infringing on Neil Gaiman’s copyright, so I won’t quote his observations on this question which are freely available to all to read on his website, but I would object to claims that he and other high-selling authors simply don’t recognise the plight of lesser luminaries. Most of them started off poor, and most of them remember that.

    Furthermore, claiming that the reader of the ebook s/he has bought only has the right to have it read aloud by him/herself or by another human being is going to play merry hell with sales in the Andromeda galaxy…

  57. Jill
    Mar 02, 2009 @ 10:12:41

    I don’t remember every saying any author doesn’t remember what it is like. i said the guild is trying to protect the income of authors and that many have very little revenue stream as it is. That is VERY different that accusing authors who have made it of not remembering that. I did also say I think a lot of the general public not inside the NY publishing world do not understand how hard it is to make a living at this.

  58. Jane
    Mar 02, 2009 @ 10:18:21

    @Jill You do realize that the copyright act does not imbue content creators with the right to make a living off of being a content creator. The copyright act balances the reward of being a content creator with the need to allow freedom to expand arts and sciences. It’s based off an original grant from the Constitution to Congress.

  59. kirsten saell
    Mar 02, 2009 @ 10:27:49

    stupid connection and duplicate comments, sorry

  60. Robin
    Mar 02, 2009 @ 10:49:06

    The people STEALING those ebooks is growing massively too. I'm sorry but if the technology that is already allowed cannot be controlled without this theft, don't give away more.

    But the position of many many legal-type people is that there is no “giving away” of anything here, but the acknowledgment of rights readers already have as part of the bundle of rights they purchase with a book.

    In the opinion of many legal-type people, the AG is reaching well beyond, asserting, and trying to claim a legal right authors *don’t* have, and clearly, part of the rationale seems to be profitability (even though, as Jane said, there is no legal right to make a profit from one’s creative work). If readers were doing this, what’s the likelihood they’d be charged with piracy of some variety? But when the AG does it, they’re protecting authors.

  61. kirsten saell
    Mar 02, 2009 @ 11:05:07

    Okay, first two comments posted, then I deleted one, then the other one disappeared. Argh. Here goes again:

    I’m not convinced that Amazon played anyone–and no, I’m not being naive. But seriously, TTS has been available on many devices that handle ebooks, not just personal computers–for a while now. I can see Amazon figuring it was a cool new feature on their product and no one would think anything other than “Wow, cool new feature for the Kindle.”

    Traditional publishing does have a recent history of serious overreaction to the problems–like piracy–that present themselves with new technologies. They weren’t always this defensive. I can’t imagine mmpbs would have sold particularly well if publishing’s response to discovering stripped copies being sold in stores was not to put that small advisory on the first page to educate readers, but to jack up the price and make the product difficult for legitimate readers to use. In fact, I’m pretty sure they would have realized doing so would make their product less attractive to readers than the illegal one. And if authors (and the AG) had responded to that problem by putting out a press release that basically painted all readers and bookstores as potential thieves who were making fast and loose with authors’ rights, I can only imagine the PR nightmare that would have been.

    I’m hoping that when all this settles out, this bid by the AG to assign TTS rights it simply doesn’t encompass isn’t the only thing that goes out the window. But as a friend of mine tells me all the time, “Wish in one hand, shit in the other, and see which one fills up first.”

  62. Robin
    Mar 02, 2009 @ 11:10:12

    @ Courtney Milan: I understand what you’re saying, and while I think we’re probably just caught in the Washington – DuBois dynamic here, I’ll tell you what my concern is: that so many people — readers and authors alike — are so uninformed about copyright that they are asserting incorrect information and opinions and believing those opinions at a rate that leads to the assertion of rights that don’t exist and the abdication of rights that do. To the point where Congress can trample unfettered over those rights, because no one will a) challenge them previous to the passage of a bill, or b) challenge them within the judicial realm as a check to the over-reaching of the legislative.

    We could probably argue endlessly about the relative rights of Congress to exercise their Constitutional grant (and wouldn’t I love to open a discussion about what a total disgrace the patent granting system has become!) as set against the way the courts have interpreted the reach of that grant — and the limits of the rights themselves — and I definitely think SCOTUS has gone both ways (Eldred, for example, sucked, Acuff-Rose didn’t, IMO), but I still think it’s incredibly important to raise awareness, to agitate for education on these issues, because otherwise I think what happens is that the pendulum has to swing very far to one side before people start to push back, and while that dynamic may be inevitable in our version of participatory democracy, it’d be nice if people cared *before* we hit the absolute edge, lol.

  63. Robin
    Mar 02, 2009 @ 11:15:07

    And slightly off-topic, when I was trying to confirm the name of the Eldred case, I came across this little piece, which, while written before the CTEA was affirmed by SCOTUS, has some wonderful insights about the Constitutional grant of copyright and the essential value of fair use.

  64. Shiloh Walker
    Mar 02, 2009 @ 11:47:28

    I commented over at the SB blog that I have no issues with the TTS capabilities of the Kindle. Having a machine read to you isn’t anything like a true audiobook.

    Of course, I can understand the concerns of those who worry about the tech as it improves and becomes more…well, like a real audiobook.

    Seriously, though, I wish the AG would spent it’s apparently considerable power on piracy issues instead of this-the people reading on the Kindle PAID for their copies. If they want a machine to read it to them, I have no problems with it-that’s just my opinion. But if the AG can make Amazon back down, maybe they could make an impact on the problem with pirates.

    Put that power to use for the good of author-kind, I beg you.

  65. Jane
    Mar 02, 2009 @ 11:52:46

    @Shiloh Walker what is it that you want AG to do about piracy? I.e., do you want them to sue individual readers like the RIAA? Do you want them to sue Grokster or a similar type of peer to peer networking service? What possible “enforcement” do you want AG to do in regards to that?

    Wouldn’t it be a better use of AG’s power to work to a) creating an online consortium bookstore for publishers that bypasses retailers and allows authors and publishers to retain a greater portion of the sale or b) to brainstorm about harnessing existing technology in new ways to create new ways of monetization of existing products or c) trying to plan for the next 5, 10, 25 years in publishing to create a new business plan or model that can address declining reader numbers or d) spend money to promote literacy and encourage readership across the board?

    What is the more effective use of AG’s “power”?

  66. Robin
    Mar 02, 2009 @ 11:59:27

    RE: the AG and piracy, I LOVE Seth Godin’s brief but IMO spot on take.

  67. Courtney Milan
    Mar 02, 2009 @ 12:22:00

    @Robin: No, I definitely think you’re hitting on the weakest part of the plan I espouse: People often define their rights not by what they *should* have, but by what they *have* had in the past. The sneaky part of the DMCA is, that by allowing manufacturers to redefine sticky rights with technology, they can start to divorce those rights from people’s perceptions. And you’re right, it’s a significant worry–people won’t fight for something they don’t believe belongs to them.

    All I can say is, the ease with which Amazon giveth and taketh away convinces me that they are not the people who I want to rely upon to keep people aware of their rights.

    What I would really, really love to see in response is a list of all the cool things you can do with text-to-speech. And I don’t just mean, provide access for the blind–that is extremely important, but it’s not the only thing that can be done.

    I mean things like: people reading with Kindle 2.0 can use the text-to-speech feature to get an idea of how to pronounce words, which enables them to increase both their reading and speaking vocabulary. (I don’t know how strong an argument this is, since I don’t know if Kindle 2.0 has a reasonable pronunciation algorithm). I want a big, huge list that shows people exactly what they’re losing if they lose text-to-speech. I want people to know what they’re losing, and in that battle, Amazon’s only desire is to make money, and so they will fight to the point of profitability but no farther. Talk about “rights” and “you should have” doesn’t click for a lot of people. Concrete examples go a lot farther than an abstract right that most people can’t quite envision.

    Of course, I am surprised that at this point in the discussion nobody has mentioned the awesome text-to-speech-ifying here: See, for instance, What we need more of is science (MP3 file, lots of profanity, zero tolerance).

  68. Stevie
    Mar 02, 2009 @ 12:23:23

    Jill said

    “i said the guild is trying to protect the income of authors”

    The problem with this is that at no point has the Guild, or indeed you, produced any evidence to show that banning TTS would protect the income of authors.

    And as a number of posters have pointed out, adopting a stance of highly dubious legal validity is not only wrong in itself but also calculated to endanger relations with the people who drive the market; viz, the purchasers of the books themselves.

    If you read the regular commentaries on the publishing trade on this site you will realise that most of the people reading here are somewhat better informed than you seem to imagine.

    The one thing that will guarantee the demise of the e-book shortly after the dead tree model finally folds up and dies is the importation of the ‘screw the consumer’ attitude which engulfed the publishing industry in much the same way as it engulfed Wall St over the last couple of decades.

    And that is what this looks like; an attempt to rip people off. Even the most impecunious of authors must grasp that alienating your potential customers is not a good way of turning them into actual customers.

    I really do recommend that you read Neil Gaiman’s comments- he’s had several go’s at the topic- if only because he produces very popular audiobooks himself, as well as all the other varieties. So he is in a rather more informed position than you are to consider the whole question of whether computer generated speech can substitute for audio books.

    Alternatively you could consider Cory Doctorow, who is a little harsher in the way he conveys his views:

    “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.”

    Difficult to argue with that last sentence…

  69. Kris Kennedy
    Mar 02, 2009 @ 12:26:36

    I am surprised at people’s irritation with AG making an issue of this, whether or not it, in the end, needs to be one. (I’m on the fence about the issue.)

    Amazon is A Very Big Corporation. When they do something like this, thank GOD some other entity questions it, provides legal and societal brakes, as it were.

    B/C rest assured, Amazon did not make their text-to-speech decision based on what’s best for US, the average reader, or for the blind reader. This was not about altruism. It was not about ensuring readers’ constituional rights.

    It was about money.

    My point being, the vehemence and anger at AG & supporters of their actions is somewhat astonishing.

    This is partly a legal argument–we live in a nation where that’s allowed and encouraged. Hurray. Intelligent people can have differing opinions. Doesn’t mean they’re out to get blind people. Or eBooks. Or eReaders.

    It’s also partly trying to re-define old terms that don’t work anymore. When does a recorded voice reading words aloud become an audio book vs. just the book being read aloud?

    What’s the difference?

    This has never been an issue before. It is now. People are trying to work it out.

    We’re embarked on a brave new world. People don’t know the implications of the new uses & new technologies. Sounds fair.

    I guess what I’m saying is: a little less combativeness about the whole e-world of literature & its various permutations might go a long way.

    (And that goes both ways, haters of TTS, of which I may be one, when this all shuggles out.)

    ~Kris

  70. Kris Kennedy
    Mar 02, 2009 @ 12:39:39

    2 quick other thoughts:

    1) I don’t see where saying,
    “But the position of many many legal-type people is that there is no “giving away” of anything here, but the acknowledgment of rights readers already have as part of the bundle of rights they purchase with a book.” (Robin, comment #60) solves the problem.

    Maybe it’s the same, maybe it’s not.

    That’s what the whole discussion is about.

    New technology brings up new rights issues, new legal issues, ones that didn’t exist before, and you can’t just say, “Well, it’s *obviously* the same” and have it be so.

    2) I suspect the reason there's no law to point to saying you *cannot* do this is b/c the technology is only just now reaching the point where we need to examine whether we *need* a law or not.

    The absence of a law does not mean there *shouldn’t* be one. There didn’t used to be laws against lots of things. I’m glad we didn’t use that as the basis for saying “It must be legal, then.”

    Of course, we’re required to follow the laws that exist now, until we change them.

    And I see Jane’s point–and Courtney’s, and many others–that TTS follows the law (i.e. is included, implicitly, in the bundle of rights the author sells)

    Others disagree. That’s where the legal interpretation comes in. (Me, not being a lawyer, am probably way over my head.)

    Awesome conversation. Good points, making me think . . . .
    ~Kris

  71. Kris Kennedy
    Mar 02, 2009 @ 13:30:46

    And please, please, please, can we stop calling it the ‘dead tree model’ of publishing??

    It’s such a superior, devisive way of approaching the issue.

    And seriously, did you know, paper is recyclable? And we’ve kinda moved away from the awful, old system of cutting down virgin &/or ‘wild’ forests to make paper? And that the recycling & paper industry creates lots of jobs?

    Not saying it’s all good, but it sure isn’t all bad.

    And how about eWaste? If we’re going to co-opt the environmental as the argument, we’ll have to talk about where all the old, TOXIC e-waste goes. (Hint: poor African nations)

    And we’ll need to talk about how many e-devices each individual has, creating additional waste. How environmentally savvy is it to have a computer AND an eReader, creating that much more production–and then, eventually waste–of another e-device w/ toxic heavy metals. And let’s not even get into how often people replace their electronic devices.

    Sorry. I know this is off-topic, but I suspected this conversation was going to go there, and it has, in a couple comments.

    The ‘Us vs Them’ mentality (of print vs E) gets insidiously injected into almost every publishing conversation nowadays. I’m so tired of it.

    People are pubbed by an epublisher and proud of it? Good. You should be. It’s an accomplishment to get published.

    Making lots of money? So cool. You should. It means people like your work.

    Proud of the epublishing world, feel it’s better than the NY model? Awesome. You should believe in what you do. Power to you.

    Just . . . no need to step on or implicitly/explicitly demean others who make different choices than you on your way up.

  72. kirsten saell
    Mar 02, 2009 @ 13:57:49

    @ Kris Kennedy

    I don’t think print publishing is inherently worse or less awesome than epublishing. But I do know that successful epublishers who have branched out into print follow the traditional print model where they can (contract terms, royalty rates, distribution, formats), because that’s the model that’s been shown to work. But print publishers seems almost universally reluctant to even consider following the lead of epublishers where digital rights are concerned (re: limited format choice, DRM, high list prices, atrociously low royalties).

    This is where print publishers fail, IMO, to meaningfully embrace the new technology. That doesn’t mean I think print published authors are somehow below epublished ones. Just that maybe they and their publishers might have something to learn from an industry that’s aready been around for a while and is enjoying consistent growth.

  73. LindaR
    Mar 02, 2009 @ 14:06:08

    I just saw the future:

    Authors will contract with epublishers like Samhain and retain the print rights!

    Then, if the book is a hit and there’s a demand for a hard copy version, Samhain can take pre-orders then print the book when a critical mass of demand accrues. They could even sell deluxe versions, hard copy and signed by the author, if the demand is there. The hard copy royalties for the author could be negotiated to a sliding scale tied to the initial print run.

    Then they’ll sell the movie rights to Drew Barrymore and go to Greece on holiday.

  74. Kris Kennedy
    Mar 02, 2009 @ 14:18:31

    Kirsten~
    You’re right, of course. NY publishing world moves rea-a-a-lly slowly.

    Seeing as there’s all that potential money there, it’s somethign to wonder about, why they’re not?

    Aside from environmental concerns, my ONLY concern about having my book out there in eformat is how copy-able it is.

    I love libraries. I love UBSs. I *want* people to use them, and I’m not stomping my foot about ‘I want my money!’

    But when you get a book from the library, there’s still only one book. When you resell it to a used book store and someone buys it, there are not suddenly 2 copies of my book. Stlll just one.

    And someone, somewhere, had to actually pay for that first copy.

    Fix that, and I’ll join parades about distributing electronic versions of books. (aside from the environmental issues . . . )

    LOL to LindaR on the new wave of publishing contracts. I think you are prescient.

    Sorry for derailing this conversation . . . .

  75. Stevie
    Mar 02, 2009 @ 14:23:48

    Kris said:

    ‘And please, please, please, can we stop calling it the ‘dead tree model' of publishing??

    It's such a superior, devisive way of approaching the issue.’

    Really? It’s also accurate, which may be why it is offending you.

    Most grown-ups are aware that paper is recyclable, and that there are environmental costs attached to the production of devices such as pcs and dedicated e-book readers; trying to suggest that we are naive ignoramuses only points up your apparent unwillingness to tackle the points I made about the business structure in publishing, and the way it so drastically changed, along with a lot of other businesses, since the 1980s.

    You would have to be a great deal more than a mere, naive ignoramus to claim that mainstream publishing is in anything other than a deeply parlous position, along with much of the rest of the global economy. No-one reading your last post would derive even a glimmer of a clue to that one; the World According To Kris seems to consist of noble, gentlemanly publishers reaching out the hand of friendship to poor abused authors of e-books to recue them from the clutches of the e-publishing houses.

    I’m pretty sure that is not an accurate depiction of the current state of affairs, just as I am pretty sure that Paul Aiken’s statement in the Wall St Journal “They don’t have the right to read a book out loud” is not an accurate depiction of the law …

  76. Courtney Milan
    Mar 02, 2009 @ 14:24:32

    @Kris Kennedy:

    Others disagree. That's where the legal interpretation comes in. (Me, not being a lawyer, am probably way over my head.)

    Kris, I agree with much of what you say.

    I think one reason why you see hot tempers, especially from lawyers like me is that I have not seen legal interpretation from author’s guild on the infringement question–just policy argument.

    Imagine a law that reads as follows:

    You must make a yearly payment to the circus guild of $100, if any of the following circus animals is in your possession:
    A. Camels
    B. Lions
    C. Tigers
    D. Elephants

    You don’t have to be a lawyer to figure out if you owe a yearly payment. You look at your animals. You look at the statute. Any animal not listed in the statute won’t trigger the payment. Easy, right?

    So imagine you own a horse. The circus guild tells you that under this law, you must pay $100.

    “Wait,” you say, “I have a horse. A horse is not a camel, a lion, a tiger, or an elephant.”

    “Aha!” says the guild. “But people use camels as beasts of burden, and they also use horses as beasts of burden! You could be using your horse just like you use a camel. Many horses are camel-colored. And in a few years, paper-mache technology will have advanced to the point that horses can have saddles that give horses camel-like humps.”

    Well, that argument by the guild is not germane to the statute. If you want to know whether you need to pay, you do the following. You look at your animal. You ask yourself, is it a camel? Is it a lion? Is it a tiger? Is it an elephant? If the answer to all those questions is no, you don’t pay. Anything not explicitly included by the statute is implicitly excluded.

    The copyright statute is set up like that circus animal statute. It says that if you have a copyright on something, people cannot do A, B, C, or D without your permission. Anything the copyright statute is silent on, people can do, without getting your permission. In other words, in order to find that text-to-speech infringes, you have to classify it as an elephant or a lion or a camel or a tiger. If it is not one of those things, the action does not infringe.

    I have not seen a single person bother to give an explanation as to how text-to-speech is a camel. They argue that people can use text-to-speech instead of camels–but if it’s still a horse, it is not a camel. I would love to see a legal argument as to why it’s a camel.

    I can appreciate a good argument.

    I can’t appreciate an argument that is never presented. Right now, AG’s argument is that text-to-speech cuts into an author’s revenue stream. They have not actually advanced a legal argument that text-to-speech is copyright infringement.

  77. kirsten saell
    Mar 02, 2009 @ 14:32:57

    I’m sorry, I probably already said this somewhere upthread, but Courtney Milan, I think I love you.

  78. Courtney Milan
    Mar 02, 2009 @ 14:34:56

    @Stevie:

    You would have to be a great deal more than a mere, naive ignoramus to claim that mainstream publishing is in anything other than a deeply parlous position, along with much of the rest of the global economy.

    Unless you were on, say, a romance site, devoted to romance authors, who wrote romance, and romance publishers showed gains in the last quarter of a terrible economy.

    Seriously, Kris nicely asked people to respect publishing in all its forms, and said there were pros and cons for both print and e-publishing. There’s really no call to get nasty because she suggested there were pros to print publishing.

    (Disclosure: I am print published. Also I heart Kris. And her print-published debut, THE CONQUEROR, which is already getting awesome buzz, is extremely high on my “buy on my Kindle as soon as it comes out” list.)

  79. Courtney Milan
    Mar 02, 2009 @ 14:36:35

    @kirsten saell:

    I'm sorry, I probably already said this somewhere upthread, but Courtney Milan, I think I love you.

    This is probably the first and last time anyone will ever love me for engaging in legal pedantry. I will revel in it. ;)

  80. kirsten saell
    Mar 02, 2009 @ 14:43:04

    Well, I have an unhealthy fondness for circus analogies, you see. *ahem*

  81. Courtney Milan
    Mar 02, 2009 @ 14:46:17

    @kirsten saell: You see? That is one of the benefits of e-publishing. Niche markets. ;)

    (just kidding!)

  82. kirsten saell
    Mar 02, 2009 @ 14:58:47

    LOL, man I love a NY published author who still has a sense of humor.

    (just kidding!)

  83. Kris Kennedy
    Mar 02, 2009 @ 15:35:27

    Stevie said:
    “…trying to suggest that we are naive ignoramuses…You would have to be a great deal more than a mere, naive ignoramus to claim that mainstream publishing is in anything other than a deeply parlous position…the World According To Kris seems to consist of noble, gentlemanly publishers reaching out the hand of friendship to poor abused authors of e-books to recue them from the clutches of the e-publishing houses.”

    And . . . that kind-of proves my point about being devisive and insulting.

    I never suggested epublished authors were ignoramuses (how could you ever have heard that in my note? Why would I suggest such a thing? I don’t think it), and I don’t know what you’re even implying ‘rescued” means (then attributing to me)

    As far as me seeing NY publishing houses as gentlemanly do-gooders . . . I never said anything about NY. I talked about ewaste. I feel like one of us fell through the looking-glass.

    I think epublishing is a viable and valuable publishing model, noting concerns over environmental issues and unauthorized copying.

    Is that clear enough?

    If you got anything else from my note, it didn’t come from me.

  84. Robin
    Mar 02, 2009 @ 15:44:19

    @Courtney Milan: I think AG, at least through Paul Aiken, is advancing a legal argument as well as a commercial one, according to this recent Engadget interview with Aiken. Among the statements Aiken makes is this (statements in bold are questions by the interviewer):

    So would you call this a legal objection or an economic one?

    There’s legal objections and there’s economic, or business objections.

    Can you delineate what your legal objections are?

    Well, the legal objections fall in a couple categories. One is the basic copyright objection which I know has been bandied about a lot online, and that objection comes in two parts. There’s the unauthorized reproduction of the work which is one claim under copyright law — for that there has to be fixation of the copy and there’s a legal question as to whether or not there’s adequate fixation in the Kindle. The second claim is that text-to-speech creates a derivative work, and under most theories of copyright law, there doesn’t have to be fixation for there to be a derivative work created.

    And I read the Guild’s position as dependent on and/or implicitly forwarding a conflation of the commercial and copyright issues. Of course it’s complicated to begin with because market analysis plays into Fair Use and infringement analyses, but I don’t think that’s what’s going on with the Guild’s position. I see it as a merging of entitlements — one an asserted legal right, one an asserted commercial right — neither of which their authors are necessarily entitled to.

    All I can say is, the ease with which Amazon giveth and taketh away convinces me that they are not the people who I want to rely upon to keep people aware of their rights.

    Oh, ITA with this! But the situation sure provides a good opportunity to parse the issues and get some discussion circulating (and hopefully a little balancing activism ;) ). And as you know, in a legal system where one of the most famous First Amendment cases stands on Hustler’s defeat of Jerry Falwell, you know that you can’t get too invested in finding the ‘perfect’ plaintiff, lol.

  85. MCHalliday
    Mar 02, 2009 @ 15:59:18

    There is simply no difference in the Kindle reading aloud to my kid and my reading aloud to my kid. They are both performances of copyrighted material accomplished in the privacy of my home.

    To my way of thinking, Jane has it right: Amazon was wrong to back down from AG’s stance, “They don't have the right to read a book out loud.” It comes down to the fundamentals of choice associated with a purchase; the right to read or read aloud (tech or otherwise) without monetary gain, is granted.

  86. Kris Kennedy
    Mar 02, 2009 @ 16:00:40

    Courtney,
    Well, that’s good news, b/c I like horses more than camels. Does that mean I can have one for free? :-)

    I see the argument you’re making. The law, as it stands, does not separate out any speaking-versions-of-the-text-that-are-not-actually-performed-by-a-live-person subrights. (Say it fast.)

    (or…it doesn’t appear to–who knows how the case would have gone down in the courts? But you’re saying AG has not even actually tried to make a legal point, just stated an opinion as fact.)

    The law would have be changed to, say, include horses, using your above example. Or, to separate out SVOTNAPALP rights.

    And, no, we should definitely not start making laws based on what *could* happen in 5 years. Shudder.

    What I like about conversations like this–and actions like AG’s–is that they make sure these issues aren’t ‘just happening,’ behind the scenes. Technology is getting more and more amazing–we should be paying attention. Corporations are getting bigger and bigger (or falling down entirely, which is another conversation. )

    We need to stay awake.

    10 years ago, we did not face this particular issue. And, while not perfect, I think some of the push-pulls of our society (legal push-pulls, in this case) force us to stay awake.

    That’s why I like that AG ‘pushed’ against Amazon, even if it turns out they don’t have a leg to stand on, legally.

    And yes, pretty please buy me, in whatever format works for you. :-)

  87. Shiloh Walker
    Mar 02, 2009 @ 16:13:17

    @Jane: I’d be happy if we could just raise awareness of it, Jane.

    Some people realize it’s wrong, don’t care and we can’t change that.

    But those who don’t realize that it’s wrong, or those think, yeah, maybe it’s wrong, but what does it hurt, if we could change how they see it, I’d be a bit more satisfied. AG has considerable influence and i bet they could raise awareness.

  88. Imogen Howson
    Mar 02, 2009 @ 16:19:03

    Seriously, Kris nicely asked people to respect publishing in all its forms, and said there were pros and cons for both print and e-publishing. There's really no call to get nasty because she suggested there were pros to print publishing.

    (Disclosure: I am print published. Also I heart Kris.

    I am epublished only, and although I’m sure Kris is a nice person I don’t know her so I can’t heart her.

    But I can still understand that “dead tree books” is a divisive term. I’m sure we’ve talked about this on DA (or Smart Bitches?) before. Yes, we all know that paper is made from dead trees. But insisting on using the term to print-published authors is just as irritating as insisting on referring to someone’s “dead cow shoes”. Meaningful dialogue doesn’t happen when one side is using a term the other side finds offensive.

    Not that there need to be sides, surely. It’s all publishing.

    Um, climbing back on topic…

    I love the idea of the TTS Kindle, and I’ve asked my publisher to please continue to let my books have that function. I really don’t see it as any different from subtitles on DVDs: a nifty little extra that most people don’t use but that is oh so useful if you find your hearing (or in the case of the Kindle TTS, your sight) deteriorating.

    Also, there’s a lot to be said for someone with disabilities being able to use the exact same device that everyone else is using. Why should someone who’s blind have to jump through hoops to get their books in a medium they can use, when they could just buy a Kindle and access the whole of Amazon?

  89. Shiloh Walker
    Mar 02, 2009 @ 16:21:41

    a) creating an online consortium bookstore for publishers that bypasses retailers and allows authors and publishers to retain a greater portion of the sale or b) to brainstorm about harnessing existing technology in new ways to create new ways of monetization of existing products or c) trying to plan for the next 5, 10, 25 years in publishing to create a new business plan or model that can address declining reader numbers or d) spend money to promote literacy and encourage readership across the board?

    And…as an afterthought, yes, those are all good ideas. However, I get the impression that you feel these are more important than dealing with piracy.

    I can’t agree that they are more important, because piracy is IS hurting authors and it’s an issue that hurts authors a lot more than readers realize.

    I can name five popular authors off the top of my head who have cut back or stopped writing for epubs altogether (not going to, though-please don’t ask) and one of the huge deciding factors was piracy.

    Since major pubs don’t publish as authors as often as ebook pubs, that means these authors are putting out fewer books.

    Piracy costs pubs millions of dollars. It costs authors monies they are rightly entitled to, and in this day and age, it’s money they need just as much as any other person out there. Although NEEDing the money doesn’t change the fact that it is wrong, stealing from a rich person is just the same as stealing from a poor person.

    When publishers see revenue drop, they increase prices, so I wouldn’t be surprised if piracy is one of the issues behind increasing book prices.

    It’s theft, it affects readers, it affect authors, it affects publishers. It’s an issue that’s every bit as important, IMO, as TTS and the other issues you discussed. So yes, I feel it would be an effective use of the AG’s considerable influence.

    And now I’m heading off to the Y and then going back into my deadline cave.

  90. kirsten saell
    Mar 02, 2009 @ 17:41:51

    That's why I like that AG ‘pushed' against Amazon, even if it turns out they don't have a leg to stand on, legally.

    My problem with it is, having a leg to stand on legally doesn’t necessarily mean everything. Or anything.

    Last thing I want is for some court somewhere to decide that horses should be treated under the law the way camels are (which, IMO, they most certainly should not) simply because their characteristics overlap in one small way. Or for a decision to come down that basically says a horse IS a camel. And dude, don’t say it will never happen.

    I think one reason epublished authors are scratching their heads and getting annoyed is the continued assertion that this is something new. Even your statement that “10 years ago, we did not face this particular issue”. Because ten years ago, epublishing did have this particular issue, and they didn’t see an issue in it. It may be new to print authors, and new to NY, but ebook readers have been happily enjoying TTS for the last decade. And now that someone has come along and made an issue of it simply because “OMG Amazon has TTS! It’s really real!” those readers are facing the loss of a right they’ve enjoyed for years, one they are entitled to, or the prospect of having to pay extra for it.

    Ebook readers already have to compromise with the lack of tangible property rights that prohibits them from reselling or sharing their books. They already have to deal with traditional publishers that basically tell them “Sure, you can read this book, but only on your PC, or your PDA, or your iPhone, or your ereader, or your laptop, so pick one and stick with it, and you better hope the DRM doesn’t fuck up because then you won’t be able to access your book at all but we already have your money so who cares?” Now they’re dealing with someone telling them, “Sure, you can read that ebook that you legally purchased, but you can only read it with your eyeballs, so you better hope nothing happens to them. And if it does, well, you gotta pay extra.”

    People choose ebooks because they’re easy and instant and inexpensive and convenient and versatile and super-portable. And traditional publishing seems determined to systematically negate every single one of those benefits.

    So I can totally undestand why people are mad.

  91. Kris Kennedy
    Mar 02, 2009 @ 18:47:19

    Kirsten,
    I actually see your (and others’) point, on this issue, at this time. Eyeballs or not, if you bought it, you should be able to access the material within however works for you.

    The reason I think it’s important to keep talking about it, tho, rather than just saying “It’s a done deal, clearly,” is b/c who knows what the future holds?

    And really, that is all I’m saying.

    fwiw, I went back and forth on my phrase, “10 years ago.” Originally, I wrote something like, “In the past this technology hadn’t reached enough people yet to make it as much of an issue…” but thought it was clunky, and that my point would be clearer even with the generic, not-very-accurate phrase. Sorry it didn’t carry, tho.

    I really appreciate you sharing your thoughts in a direct and open way.

    I have to say, I notice a lot of territoriality about almost any e-issue. Like, these were issues (or non-issues, as the case may be) for the epublished community years ago, so . . . no one else can have a problem with them now.

    These may not be new issues to epubbed authors, but with the Kindle and other eReaders making print editons available as electronic files, they are new issues to others, and those ‘others’ get to have an opinion too, since they are affected.

    Maybe an uninformed opinion, but that’s the learning curve.

    And let me state again, very clearly: On this issue, as things stand right now in time, I think I agree with the sentiments being espoused.

    But it feels like a difficult catch-22 for the epublishing community: epubbed and eBooks make valuable contributions to the publishing / literature community.

    Now it’s being recognized, more and more people are ereading, more devices are being used, people know more about it and . . . well, next thing you know, all the downsides of ‘more’ start happening.

    Like w/ a small town. The people who really love their small town, well, they advertise it, talk it up, want everyone to love it. Soon, tourists are coming, and saying annoying things like, “Oh, look at that pretty little house! It’s so cuuuute!” and they buy it up. Then they buy more. And more.

    Next thing you know, the stuff that made your town so cool, at least the parts related to its smallness, are changing. The newcomers have a vested interest in the operations of the town, and they get a say, even though you’ve been there longer.

    If someone’s book is available via the Kindle, then they get to have an opinion about it, whether they’ve been in the game 10 minutes or 10 years.

    I assume I’m just getting more and more people angry as I talk, so I’ll stop.

    Really, all I’m saying it we’re all in this together.

  92. Marilynn Byerly
    Mar 02, 2009 @ 19:34:05

    This whole situation is about what a big company is doing to author rights, not about individuals using their text-to-speech (TTS) software to listen to books.

    Amazon was grabbing a right most publishers and authors don’t believe they’ve contracted.

    Individuals using TTS isn’t at issue. Most publishers and authors don’t care if you read an ebook with TTS as long as you don’t share a copy.

    Right now, text-to-speech isn’t defined legally. It may not be a right by itself, it may be a right by itself, it may be an audio right. No one can say with absolute certainty what it is, and until some kind of lawsuit settles the matter, no one will be able to.

    The current controversy isn’t the first time that an author’s right had to be defined.

    In 2001, Rosetta e-Books contracted ebook rights to a number of books by famous authors including William Styron, Kurt Vonnegut and Robert Parker.

    Random House who had these authors under contract for paper rights declared that if a book contract did not mention electronic/digital rights, the ebook rights were automatically part of the paper rights so Rosetta could not publish these authors’ ebooks. They sued Rosetta.

    The final results of the lawsuit said that control over ebook rights belonged to authors and their agents, not with the paper publisher, and that the author/agent had a right to sell those rights separately. In other words, ebook rights were a separate right, not included with paper rights.

    As media continues to evolve, lawsuits such as this will be needed to protect the author’s various rights.

    That Amazon has backed down about TTS on the Kindle probably means that their lawyers have studied the issue and discovered that they’ll need a lawsuit to settle the matter, and TTS on ebooks isn’t valuable enough right now to be worth an expensive fight.

    In many ways, it’s a very bad thing that Amazon has stopped this lawsuit because TTS rights need to be defined. Until they do, most publishers will block TTS on their ebooks because they aren’t certain if they have that right, and authors will block TTS because they fear the loss of audio rights which are considerably more lucrative.

    This really stinks for the visually impaired.

  93. kirsten saell
    Mar 02, 2009 @ 20:47:10

    and authors will block TTS because they fear the loss of audio rights which are considerably more lucrative.

    Perhaps they are now, under the current model traditional publishers are using to monetize ebooks. If ebooks still reflect a minuscule percentage of a print author’s sales, that just might have something to do with the fact that print publishers are going out of their way to make them unattractive (or less attractive than print) to consumers. You’d have to be quite the spendthrift tech aficionado to pay the same or more for a DRM-hampered ebook you can’t even trade to a UBS.

    Still, despite the hobbling of the format by traditional publishers, ebooks are a steadily growing segment of the market, and if they continue to grow, they will likely end up being much more lucrative to authors than audiobooks. And if print publishers started paying the royalty percentage authors deserve, along with actually making ebooks attractive to consumers, I don’t see how there wouldn’t be scads of money to be made off them.

    In other words, the non-resellable, non-sharable, non-regiftable ebook has the potential to turn an author’s audiobook royalties into a non-consideration.

  94. Marilynn Byerly
    Mar 02, 2009 @ 21:01:52

    Still, despite the hobbling of the format by traditional publishers, ebooks are a steadily growing segment of the market, and if they continue to grow, they will likely end up being much more lucrative to authors than audiobooks

    Like it or not, ebooks are the future of publishing because they are simply too efficient a delivery system.

    Indie bookstores are dying every day, and the major chains are in deep trouble, as well. If many bookstores remain after this recession is over, it will amaze most experts.

    That leaves the big box stores like Walmart which only carry name authors to take over as mortar and stone places to buy books. The remainder of the books will be Amazon POD and ebooks.

    The big question is not whether ebooks will succeed, but whether readers will be willing to buy them if they can’t buy paper books. If enough readers do, big publishing will survive. If not enough do, then books will be published by small press and become an even smaller niche market.

    But all that is off the subject. If you’re interested in my take on the current state of publishing, you can find it at my website in the articles and short stories listings.

  95. Courtney Milan
    Mar 02, 2009 @ 21:04:58

    @Robin: I stand corrected. Thanks–at least I know where they’re trying to pin the tail on the . . . uh, camel.

    As for plaintiffs . . . . I am okay with unsympathetic plaintiffs, so long as the plaintiff has an incentive to fight hard, and jail sentences/libel suits have a tendency to make even sleazy people fight. I get queasy when it’s plaintiffs who have an incentive to back down financially, defending rights, because then they’re not going to fight hard enough. It screws up the advocacy. In other words, I want a good vehicle, not a good plaintiff. :)

    @Marilynn Byerly:

    This whole situation is about what a big company is doing to author rights, not about individuals using their text-to-speech (TTS) software to listen to books.

    I understand that’s how people want to have it parsed, but legally, the law can’t chop so fine. If individuals have the right to use TTS software, Amazon is not infringing on author rights. You can’t separate them out. If users have a right to use, Amazon has a right to provide.

  96. Hortense Powdermaker
    Mar 02, 2009 @ 21:58:01

    Booksquare has an interesting take on this controversy, suggesting that Amazon has caved because it will ensure that all Kindle ebooks will have to be DRM protected (to enable a TTS on-off switch, I guess).

    Anyway, the legal analysis of this issue done by Jane and Candy Tan and others of the attorney persuasion has been very illuminating. Thanks for the explanation of copyright law.

  97. kirsten saell
    Mar 02, 2009 @ 22:15:48

    Like it or not, ebooks are the future of publishing because they are simply too efficient a delivery system.

    I do like it. :D

    I don’t think this is the end of the print book (or even necessarily the end of the bookstore), but I do see POD playing a bigger role in things in the not-too-distant future as it becomes more cost-effective.

    As to whether people will be willing to buy ebooks? I think they will. But there are ways NY could make their ebooks as attractive to consumers as epublishers do, just as my epublisher works hard to put out print books that have the same quality standards and price point as traditional houses.

    But I keep wondering, even if authors are rightly convinced that TTS on ebooks will cut into audio sales–why is this an issue in itself? Imagine if your publisher told you they weren’t going to do an audio (genuine, not TTS) version of your book because it could *gasp* cut into hardback sales, or vice versa. You’d think they were nuts.

    Assuming everyone is honest**, if you lose one audiobook sale to TTS, it means that by default you’ve made one ebook sale. (I admit I’m unaware of what the standard royalty percentage on audio is, but I’m pretty sure it doesn’t approach the 30-40% I get for my ebooks. Also keep in mind that the profit margins for the publisher are going to be higher on ebooks than on audio. Also also keep in mind that I’m painfully aware NY authors are still making sad, sad royalty percentages on ebooks.) Further, if you lose one audio sale, you might make 2 or 3 or 6 ebook sales (since ebooks can’t be passed around like audio books on CD can, and since the price point, even for NY books is better for e than audio, and therefore fewer people will balk at paying for them).

    So even if they are cutting into audio sales (something of which I’m not convinced), they’re not necessarily cutting into sales overall.

    If, as you say, ebooks are the future of publishing, we shouldn’t be looking for ways to hobble that growth.

    And @ Courtney: I keep thinking barring Amazon from providing TTS is kinda like banning sales of kitchen knives because some people might use them to stab people.

    **Keeping in mind NY could take a chunk out of piracy simply by ensuring their product is not a billion times less attractive than the illegal one.

  98. Marilynn Byerly
    Mar 02, 2009 @ 23:27:20

    But I keep wondering, even if authors are rightly convinced that TTS on ebooks will cut into audio sales-why is this an issue in itself? Imagine if your publisher told you they weren't going to do an audio (genuine, not TTS) version of your book because it could *gasp* cut into hardback sales, or vice versa. You'd think they were nuts.

    Publishers don’t do audiobooks. Audiobook companies do audiobooks. Audiobook rights are either sold by the publisher if it is included in the publlshing contract, or the author/agent sells the rights.

    From what I’ve read, publishers don’t consider audiobooks a threat to their book sales because the media is so different.

    Some audiobook companies will not touch a book that is available with TTS because they aren’t certain that TTS is or isn’t a part of the audiobook rights. That’s the biggest financial danger to authors regarding TTS. They could lose audio rights because they allow TTS to be used with their books.

    I think losing audio rights, not whether TTS will cut into audiobook sales, is the biggest concern for most involved in this.

  99. kirsten saell
    Mar 03, 2009 @ 00:14:22

    Some audiobook companies will not touch a book that is available with TTS because they aren't certain that TTS is or isn't a part of the audiobook rights.

    I know there are a few Samhain books out there available as audiobooks. I wonder if they’ve had similar problems, seeing as how TTS has been widely available for ages, and Samhain (as far as I’ve seen) doesn’t disable it on their books. Maybe some audiobook companies are just more sensible than others?

    I’m thinking the only workable solution is for a decision to come down that TTS does not = audio rights. Because all I can see happening if they end up conflated is an either/or scenario. And lovers of audiobooks aren’t going to be happy if the audiobooks they want aren’t available because of TTS, and users of TTS are going to be pissed if they have to pay through the nose for a performed book because that’s the only way they can listen to it. Unfortunately, when something like this goes to the courts, the courts don’t always opt for what’s workable.

    I’d like to see more options out there for readers, not less.

  100. Vanessa Kelly
    Mar 03, 2009 @ 09:32:20

    Obviously the economy is going through a terrible shake-down, which will have an impact on the profits of both independant and chain bookstores. Some stores will close, companies will buy out other companies, and there will likely be a contraction in the industry. But that contraction is being driven by a number of factors, including over-saturation of the market, i.e., how many chain bookstores does a medium sized town actually need, and the growth of Amazon. Starbucks is closing stores all over the place, but that’s because there used to be one on every corner. There were simply too many of them. Does that mean Starbucks is going to disappear? Nope. I’m not sure which experts are predicting the death of the bookstore, but I just don’t see it. Every bookstore I go into these days is packed to the gills, which is only my impression, but I live in a city of over a million people and they obviously like to read books.

    Harlequin just reported another strong quarter. That’s partly due to their investment in technlogies, but they are expanding their print lines as well. And why would anyone think that e-publishers are immune to the economic slow-down? Those books cost money, too.

  101. Marilynn Byerly
    Mar 03, 2009 @ 09:54:58

    Starbucks is closing stores all over the place, but that's because there used to be one on every corner. There were simply too many of them. Does that mean Starbucks is going to disappear? Nope. I'm not sure which experts are predicting the death of the bookstore, but I just don't see it. Every bookstore I go into these days is packed to the gills, which is only my impression, but I live in a city of over a million people and they obviously like to read books.

    Borders has a huge loan to pay back, and the payment has been delayed twice. Right now, no one can see them repaying the loan. Without a miracle, they’ll go bankrupt and be sold off.

    Barnes & Noble has a very different problem. They are very successful, but their stock price is much lower than their actual value. This makes them extremely ripe to be bought and closed so all those expensive stores and their contents can be sold for a very tidy profit.

    Meanwhile, in today’s “Shelf Awareness” a newsletter for indie bookstores, three long-time indie bookstores have announced they are closing. It’s rare to open a daily issue without at least one store’s closing announced.

    Amazon, however, had a successful Christmas buying season, and their stock is doing very well.

  102. Courtney Milan
    Mar 03, 2009 @ 10:53:57

    @Marilynn Byerly:

    They are very successful, but their stock price is much lower than their actual value. This makes them extremely ripe to be bought and closed so all those expensive stores and their contents can be sold for a very tidy profit.

    Uh . . . why would someone buy a successful business just so they could close it?

  103. Marilynn Byerly
    Mar 03, 2009 @ 11:07:43

    Uh . . . why would someone buy a successful business just so they could close it?

    It’s what some business vultures do. They don’t care about the business and the people employed. They only care about the money.

    This happens all the time in the business world.

  104. Courtney Milan
    Mar 03, 2009 @ 11:24:33

    @Marilynn Byerly: No, I mean . . . how on earth could they conceivably make money doing it? It makes no economic sense.

    Say B&N’s could be valued at $10,000. If so, it would probably be allocated like this:

    $2000 store front
    $2000 store inventory
    $6000 accumulated good will, repeat customer base, and proprietary secrets about the industry

    The stock would have to be DRASTICALLY underpriced for a sell-off to make sense, because you can’t cash in on that $6000 of good will & the customer base.

    Store fronts are not particularly valuable these days–too many other closings around; you could get prime store front at a relative song.

    The store inventory is also not valuable–if you’ve got the $$ to purchase a B&N, you have the leverage to get the exact same inventory, because B&N does not carry unique items. It’s all ordered from publishers. I mean, just think about it–the only way to sell the contents of B&N store at a profit is to sell it to consumers. B&N got those items at wholesale prices, and the vast majority of the stuff on its shelves is still in print, and so is *still* available to anyone else at wholesale prices.

    There’s nothing unique about the physical contents of B&N, and that’s the stuff you can sell. All the value of B&N is in the intangibles, and you can’t cash in on that if you close the store.

  105. Marilynn Byerly
    Mar 03, 2009 @ 11:38:04

    No, I mean . . . how on earth could they conceivably make money doing it? It makes no economic sense.

    The big business types who watch these things think that B&N’s true value is considerably greater than its stock price which is really pathetic at the moment.

    I don’t have the figures at hand to offer, but your evaluation of value is way too low. I imagine the value of the content alone of each B&N is in the hundreds of thousands range, and most B&Ns are in prime real estate spots at the corners of malls, etc.

    Also, one of the nasty little secrets of bankruptcy and the sell-off of bookstores and distributors is that unpaid-for inventory like books are considered part of the contents, even though they haven’t been paid for. That means the publishers will lose piles of money, and the people who sell off will make piles of money.

    We can only hope that B&N’s stock prices rise before some vulture starts circling.

  106. kirsten saell
    Mar 03, 2009 @ 15:48:32

    Augh. I’ve been all over the place looking for those Samhain books I was sure I saw as audiobooks, and for the life of me I can’t find them. I’m forced to conclude it was either an author who writes for Samhain as well as other publishers, or that if they were ebooks, they were from some other company.

    Sorry for the misinformation. My bad.

  107. Stevie
    Mar 03, 2009 @ 18:42:08

    I think a numer of my replies reem to have been devoured by the spam monster, and it’s a little late to hope that they may be retrieved given the time differences between us. Living on the other side of the world doesn’t make this any easier

    Can I instead draw to your attention a perfect example of why TTS isn’t a theat to audio books, in the shape of Neil Garman’s reading of his poem ‘Blueberry Girl, which he has kindly provided for free to all on Youtube as well as on his site.

    The creative power of a gifted poet reciting his own works is totally irreplacable by gadgets, whether ancient and modern. I cannnot imagine anyone with any kind of a choice would opt for the ‘really crappy TTS translation’ when they can not only listen to the Neil Gaiman but get the real thing for free….

  108. who backed down in the school yard? « Collection Developments @ Sno-Isle
    Mar 04, 2009 @ 15:11:54

    […] Dear Author offered a clear explanation of some of the legalese behind all of this, specifically what doesn’t hold up, and reasons why Amazon shouldn’t have backed down. […]

  109. DS
    Apr 07, 2009 @ 18:05:16

    Looks like the issue has not died yet.

    NEW YORK (AP) -‘ A group representing the blind and other people with disabilities protested limitations to the new read-aloud feature on Amazon.com Inc.’s latest Kindle electronic reader Tuesday, arguing that the restrictions unfairly limit their access to e-books.

    One of the points I find interesting about this has to do with the fact that the copyright exception for the visually impaired and for people who are not physically capable of holding and manipulating a book. It does not AFAIK cover individuals with conditions such as dyslexia.

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