Replying to myself: I see where my thinking is wrong–the contracts Amazon has are based on the fact that Amazon sells both the content and the hardware. If they sales were made by separate entities, then Amazon’s contracts would be different. It’s counter-factual to compare to the separate case.
The problem comes about because the contracts make certain assumptions about reality that are in fact false. It’s not possible to separate visual and audio representations. It’s as if a fruit-juice producer sold the refrigeration rights to one distributor, but not the freezing rights, and the distributor also sold a refrigerator that could be turned up to 11 to freeze the juice.
I’m no lawyer, but if I were the judge, I’d rule the contracts invalid and let the parties hash out new agreements. The market will decide the rest.
That’s not how contracts are interpreted. The court will try to determine the intent of the parties. If it’s impossible, then the court might conclude that specific portions are ambiguous in specific instances. The contracts will not be found “invalid.”
First of all, I think the use of the word “impossible” here isn’t warranted. Clearly, it’s not impossible for Amazon to pay royalties if its device infringes on an exclusive right of a copyright holder.
An “invalid” contract is one that is defective as to its formation. In other words, there was no meeting of the minds and no promise to exchange things of value, or the contract was entered into under duress or fraud, or that its terms require the parties to do something illegal.
“Ambiguous” simply means that given all the evidence, the terms of the contract may be interpreted in different ways. The court will use all kinds of evidence to try to determine the parties’ intent. Extrinsic evidence of intent can made otherwise ambiguous language unambiguous.
If certain terms are ambiguous under certain circumstances, that doesn’t render the contract as a whole unenforceable. A court won’t “throw out” a contract under such circumstances.
Amazon has the right to distribute X, which can be used to to Y and only Y. If it turns out that X can also be used to do Z, then Amazon might very well be in breach.
Kindle Inc. is distributing a device that helps others infringe the author’s rights. Kindle might be liable under a theory of secondary liability (contributory or vicarious infringement).
Thanks for the clarification. Doesn’t whether or not the whole contract is invalidated due to a problem in a part of it depend on the details of the contract?
But what if Z is an unavoidable consequence of Y (even if the parties didn’t realize it at the time)? That’s what I mean by “impossible”–the parties’ agreement assumes something that just isn’t so, that Y is separable from Z. Wouldn’t that be a defect in the contract, that would invalidate some parts of it?
The author does not have the right to prevent private, aloud readings of their work. Unless the book scanner to OCR to automated text reader is an infringement when used privately. Does anyone think that is?
I believe that the fact that Amazon is purchasing a license to do Y and then using it with complete foreknowledge to market a device that does both Y and Z – something no previous device has commonly done – something that the authors didn’t know Amazon was going to do – makes the situation materially different from selling Y with the remote and rare possibility that someone might cobble together a series of devices to make it do Z.
A person has the right to read a copy that was lawfully purchased. An electronic device isn’t “reading” the work. The Kindle isn’t a sentient being that reads books for its own pleasure or benefit. It’s creating a derivative version of the work. I fact, it’s creating a version that directly competes with duly licensed works.
Why the hell not? The device makers wouldn’t have anything to sell if no one was creating content.
And they’re not geting paid twice for their jobs. They’re getting paid each time someone makes a derivative work or a copy of their creative works, which is exactly what the law allows. What would be the ponit of creating a work if you could only sell it once?
I’m obviously no copyright lawyer, but I thought there was a legal precedent that copyright couldn’t be infringed by a process, because it doesn’t actually involve the original product at all and the only real relationship between the material and the process is that the process just so happens to be able to accept the content of the material as a valid argument. One example I often hear for this (but I’m not certain of the truth regarding it) is for video game system emulators. It’s (supposedly) technically not illegal to make a program that “just so happens” to be able to use the dumped ROM data of a game to make it playable on your computer, it’s just a processor, the ROM dumps themselves are what get into the flamey legal territory because you’re distributing copyrighted material, and it’s entirely possible to make something from scratch that could be interpreted by it in a way that infringes no copyright whatsoever, the fact that SNES ROMs (or whatever) work on it is completely incidental (as far as the legality is concerned).
I suppose the main difference is the Kindle is meant to read ebooks so the only possible application of the software would be to read ebooks, I suppose it may depend on whether you can upload personal .txt files to the kindle and run the text to speech on them, but even without it my understanding of the copyright law (which I learned in AP Government, minus the emulator example which was from the internets, in case you were wondering where I heard those things) still makes it a pretty strong case against the authors.
Yes, but that doesn’t address the issue that it’s not possible to separate Y and Z. If Amazon realized that Y and Z are inseparable and the author did not, then would that mean there was not an agreement?
So no mechanism can be used by a person to read a book? If someone did cobble together an automated paper-book verbalizer to read it, there would be an infringement? What about a simpler mechanism: a magnifying glass? If a person uses one to read a book, is it infringing the author’s right to license a large-print book?
Now that I think about this more, the electronic device is not creating a derivative work. A derivative work would be a recording of the text-to-speech output. A device that verbalizes text is no more creating a work than a projector displaying a printed page on a wall is. The device may be doing a performance of the work, but creating a copy it is not.
There is room for argument here, but I there is a very good argument that if a device works in such a way that it’s indistinguishable from a recording, then it will be treated as a recording.
I think he means that ebook vendors are obliged to use DRM to prevent ebooks from being read by any device with TTS abilities, but at this point I really don’t know.
Well since narrator is intended for those with vision troubles so severe that it prevents them from reading you really have to wonder if that might be a bit much.
I hope some disability lawyers take them to the cleaners and give em a PR nightmare.
It isn’t a recording, or text, or anything tangible. It’s data. And if the publishers want to interpret their contract with Amazon as saying that Amazon can’t distribute the works in any way that can be turned into audio(and the courts agree with that interpretation), then that’s fine. But that interpretation means that Amazon can’t distribute the works in a digital format. Period. You cannot stop people from interpreting data as they wish. It’s an impossible problem, as record companies, software houses and movie studios have learned again and again.
amazon just released a (free) Kindle ap for the iPhone and Touch iPod. No mags, newspaper, or text to voice though. Seems to me this would be a popular, and useful, feature. Especially for the blind.
Many people here seem to be missing the point somehow. Amazon hasn’t paid for what they are giving the customer with the text reading program. They are paying for a type of text distribution right, but also selling the Kindle 2 which can give you an audio copy as well. They are paying for one type of redistribution right, but because they ‘invented’ this new feature, they are trying to distribute something (audio) that they didn’t pay for.
This should have no effect on the individual reader/customer, except for the fact that Amazon is trying to find a loophole to essentially make themselves immune from having to pay for distributing audio. What about all those production companies that paid fair and square for audio redistribution rights of a book? Now Amazon is trying to say 'Tough luck. We figured out how to not pay for what you guys do, just because it is done by a machine."
Look at it this way: Foreign language translation rights have to be paid to the publisher/author. Say that translation software (such as Altavista’s Babel Fish) didn’t exist as we currently have it. Say a German company (Amazon) invents a ‘Babel Fish’ device (Kindle 2) that will translate texts from english into german and print out a copy of what is now a German edition. This is not legal because no matter what method the company used to translate the text, they still have not paid or even asked for permission to do so.
That example doesn’t even consider the problem of Amazon selling both the Ebook files and the reading devices.
I also think that Amazon may be trying to make their Ebook business more appealing by offering this ‘two for one’ deal with the text reader. I think that people have figured out what I am trying to point out below*, and that this is probably hampering Kindle sales a bit more than they would like, and this is a way for them to try and fix that.
*Now I have a question for anyone using the Kindle: Why are you doing it? You are being ripped off left & right by Amazon there. Think about it! You paid a couple of hundred dollars for their screen that basically just reads PDF documents (I’m hyperbolizing here), and then on top of that you paid $10 for the Ebook file? A paper book costs right around $10 too!! Do you really think that Amazon deserves that much money for just having someone enter the book into a text file? They paid somebody to type up a text file once, but have every person who wants a copy of this digital file to pay the same amount of money that a print publisher asks. The two production methods are no where near similar in the amount of money required to execute them, but you are paying nearly the same.
