The Kindle Controversy: An Economic Analysis of How the Amazon Kindle’s Text-to-Speech Feature Violates Copyright Law

The Kindle Controversy: An Economic Analysis of How the Amazon Kindle’s Text-to-Speech Feature Violates Copyright Law

Lauren Bair Jacques · 13 Vand. J. Ent. & Tech. 407

Abstract

In 2009, Amazon released the Kindle 2 with a text-to-speech feature. This feature allows users of the Kindle 2 to download software to the device that will read e-books aloud. Authors and publishers of ebooks immediately objected to the feature, arguing that it essentially created an unauthorized audiobook. Amazon maintained the legality of the text-to-speech feature, arguing that it does not copy, perform, or create a derivative work. Amazon decided to avoid a legal battle by allowing rightsholders to decide whether to enable the text-to-speech feature for each individual title. The copyright community, however, responded swiftly and nearly unanimously, siding with Amazon and arguing that authors and publishers were seeking to stifle innovation and the free flow of knowledge and information.

This Note addresses whether the text-to-speech feature violates copyright law by creating a copy, public performance, or derivative work of the original e-book. It also analyzes whether Amazon would be secondarily liable for copyright violations committed by users of the text-to speech feature. This Note concludes that were Amazon to allow its users to download e-books and read them aloud using the text-tospeech feature without permission from the authors, it would be contributorily liable for the creation of infringing derivative works. The Kindle 2 neither creates a copy nor renders a public performance. No copy exists because the Kindle file—stored only in RAM—lacks fixation; moreover, it alters the creative expression of the original work. No public performance takes place, because any performance created by the Kindle 2 occurs in private. Nonetheless, when the text-to-speech feature reads an e-book aloud, it creates a derivative work that infringes on the copyrights of authors and publishers, because it creates a substantially similar market replacement for an audiobook derived from an e-book.