Minow: Disability rights groups are protesting the Amazon decision to allow publishers to opt-out of the text-to-speech function for their copyrighted books.  Yet the feature remains for works that haven’t been opted out.  Must users be disabled in order to legally use the feature?
 
Von Lohmann: No, copyright leaves us all free to use our digital devices to “read aloud” to us. Despite the misleading statements of the Author’s Guild, you don’t violate copyright law when you have your Kindle “read aloud”  to you.  Copyright law gives copyright owners certain limited rights, including the right to make copies, perform a work publicly (like showing a movie in a theater), or make a derivative work (like writing a screenplay from a novel).

When you have a Kindle (or your laptop) “read a book aloud,” you are not “publicly performing” it — if anything, it’s a *private* performance. And no additional “copy” of the work is being made (except perhaps in the computer’s memory, and recent cases suggest that those kinds of transitory digital copies don’t count for copyright purposes). Finally, simply reading the work aloud does not create a “derivative work” — courts generally require that a derivative work contain original, copyrightable expression, something that should require more than simply reading the text aloud.

So I don’t think there is anything about your right to have a computer “read aloud” to you that depends on whether or not you are disabled. 

In my view, there is just no copyright infringement going on here in the first place.

Minow: What defines a public performance?

Von Lohmann: Where we’re talking about a performance in a real place (as opposed to a transmission), the statute defines “public performance” this way:  “to perform or display [a copyrighted work] 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.”

I don’t imagine many Kindles will be used to “read aloud” to an auditorium, so this shouldn’t apply to most Kindle users.

The real problem here is that Amazon needs a license in order to make digital copies of books and to transmit them to your Kindle. So the copyright owners can simply force Amazon to limit the “read aloud” feature as part of their license agreements with Amazon. In light of this, it’s not surprising that Amazon has decided to let the copyright owner decide whether “read aloud” will be enabled for any particular title.

It’s worth noting that device makers that are not also in the business of disseminating digital copies would not be as vulnerable to pressure from the book publishers — and that’s why I imagine that the future of “read aloud” functionality for the disabled and non-disabled like will be on laptops and e-book readers other than Kindle.

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Fred von Lohmann is a senior staff attorney with the Electronic Frontier Foundation, specializing in intellectual property matters. In that role, he has represented programmers, technology innovators, and individuals in a variety of copyright and trademark litigation, including MGM v.Grokster, decided by the Supreme Court in 2005. Fred has an A.B. from Stanford University and a J.D. from Stanford Law School.