Monday, March 02, 2009

Kindle Controversy: It's All About DRM In The End

Amazon's Kindle 2 has a new feature that's caused a bit of a commotion: it can read to you out loud. Upon learning this, the Authors Guild and publishing companies demanded that Amazon disable this feature on their books. Amazon has said that they will comply with the request, but maintains that what they are enabling is perfectly legal, and that they're only disabling it in order to be nice. Wil Wheaton recently posted on his blog his thoughts on the text-to-speech controversy from an author's perspective. Wil's point is that a computer converting text to speech isn't realistically going to compete with a person performing a reading (even in the future), and therefore it's in an author's best interest to not oppose the value-added feature that the Kindle provides for e-books. It's a purely pragmatic take on the discussion, but there are links there to a larger discussion, mostly coming from a legal perspective as well. The crux of the matter is that when you buy an audio book, you are paying for a copy of a performance of a work, and when you buy a text book you are paying for a copy of the work, not a performance, but that the whole point of having that copy is generate as many private, transient performances as you want (either in your head or out loud) by reading it. Even if reading silently doesn't count, the right to read aloud is still undeniable. Using a machine to read it, therefore, does not violate the copyright. The value added by an audio book over a text version is that, in addition to containing the creativity of the author embedded in the text, it also provides a rendition of the book by a skilled performer. Machine generated audio does not add any creative input, though it may add convenience, but convenience that used to be provided by a person and is now provided by technology is called "progress", not "copyright infringement". If Amazon were providing a service whereby they would read books to you, they would be selling a performance based on a copyrighted work, which would violate the author's copyright. They're not doing this though. What they're doing is selling a performer. This performer is owned by the people who want e-books read to them, therefore the reading of the book occurs completely within the control and ownership of the consumer, and is not fundamentally different from the other way the Kindle interprets the data that constitutes an e-book: displaying the words. If copyright were being violated in this situation (which it's not), it would be the consumer who initiated the text-to-speech event and owns the device and was therefore guilty, not the seller of the technology (which has significant non-infringing uses) that enabled it to happen. An audio book can be captured to text with software, just as a voice recording can be made from a text copy of a book. If a human does either one of these for private consumption, it is not a violation of copyright. The problem that the Author's Guild has is that they can (currently) charge more for an audio book than an e-book, and they don't want e-books to become a replacement product for audio books, thus lowering the demand for audio books. They see that text-to-speech, while not terribly impressive at the moment, will only get better as time passes and the technology is developed, and they don't want there to be a precedent stating that people are allowed to use machines to create an audio version of a book for their own use without the authors' permission. The copyright issue gets a little more complicated with digitally-delivered goods that have no physical component. If you buy a book, or a CD, or a piece of string with knots on it at irregular intervals, you can sell that physical object, and the copyright holder has no right to control the transfer of his work once he's sold it to you. This is known as the first-sale doctrine. The first-sale doctrine, however, does not apply to licensing. When you buy an e-book with your Kindle, Amazon doesn't transfer any goods to you. They don't, at least not technically, "sell" you anything. They "license" it to you, granting you the contractual right to maintain a digital copy, and use it only according to the rights specifically granted you by that license, but no more. Amazon has been granted the right to grant its customers these rights, but you don't have the right to grant them to anyone else, even if you try to transfer them to another person like you would an old book. If you owned a physical embodiment of the work, you could sell it as a used copy or give it to the person sitting next to you on a plane when you were done with it without permission of the author. With non-physical goods, there is no "sale" per se, only the granting of a license, and license terms can stipulate that they allow certain uses and forbid others. They can, for example, forbid iTunes music from being used as a ring-tone unless you paid for it again (this actually happened, until the public backlash caused a PR problem for Apple and they re-negotiated with the record companies). They can also, just as easily, forbid you from processing the digital copy of the book licensed to you in any way except to display it as text on a screen. The question of whether or not the particular license granted to Amazon's Kindle customers permits or disallows the use of text-to-speech software is therefore not the point, since if they really wanted to, publishers could refuse to license e-book sales through Amazon until Amazon was willing to change the terms imposed on readers to their liking. Therefore I think this all boils down to the issue of the marketing of purely digital goods. As consumers, we need to make sure that licenses are broad enough to guarantee that the usage rights that we reasonably expect to have with a physical copy are not curtailed simply to perpetuate the outdated revenue streams that the publishing companies currently rely on. The best way to ensure this is to refuse to buy digital goods with DRM. DRM allows the content producers to be the judge, jury, and executioners in the question of what we get to do with the digital goods we paid for. Without DRM, it is the courts, not the content controllers, that get to decide whether or not it is fair use for me to have a machine read me my book, or to rip a CD into MP3 format, or trigger the playing of a song clip on a phone such that it occurs simultaneous to an incoming call. This is as it should be. It shouldn't be DRM that stops me from breaking copyright law, it should be the fact that it would be illegal to do so. The fact that consumers have abused the freedom that comes with DRM-free media does not make me any more inclined to become the customer of a company which will abuse DRM to prevent me from doing legal things, and treat me like a criminal in the process. Rejecting DRM is, in my humble opinion, the best way for consumers to make sure that licensing a digital download grants consumers the same rights as would the sale of physical media. DRM is, at best, a rental model, and should be viewed as such by those who think they are making purchases.

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