Last day to submit petitions for copyright exemptions

Last day to submit petitions for copyright exemptions

Monday, November 3rd, is the last day to submit petitions (you can upload them) for “Exemptions to Prohibition Against Circumvention of Technological Measures Protecting Copyrighted Works”.

The details are here:

This is the triennial review of technological blocking of features and full works for copyrighted works.

This review is mandated under the Digital  Millennium Copyright Act (DMCA).

I’m not a lawyer (if you are an intellectual property lawyer, I’d welcome your comment on this post getting more technical), but here’s the basic situation as it pertains to e-books.

Publishers can insert code into an e-book file that prevents copying it or from doing certain other things to it. Using that code is often referred to as DRM (Digital Rights Management), although that’s actually a broader term.

It is generally illegal under the DMCA to “strip the DRM” so you can get around the publisher’s intended use policies.

Under certain circumstances, though, it is legal.

This review looks at changes to those exemptions…and could hypothetically add additional exemptions.

The first case that comes to mind for me, as regular readers of this blog know, would be blocking text-to-speech access.

Currently, a publisher can insert code into an e-book file which prevents text-to-speech software from accessing that text and reading it out loud.

My understanding of it, as an interested layperson, is that it is not illegal to use text-to-speech (since it does not create a copy, but it does streaming), nor is it illegal for a publisher to block the access…provided (in the latter case) that an accessible version for people with print disabilities is also available.

In other words, a publisher can block text-to-speech in the Kindle store version for most people, if a version where TTS works is available to those who can certify a disability.

I feel that TTS is not an infringing use, and I think the Copyright Office would generally agree. Let’s say, as an analogy, that publishers blocked increasing the text size to make it easier to read (I’m sure that would be technologically possible…PDFs presented as image files can’t be read by typical TTS software, for example).

Increasing the text size is a non-infringing use.

Would it be legal for the publishers to block text size increase?

Probably…but doing so couldn’t prevent the specific population of those who need larger text size to be able to access the book in some way.

Many people thought an exemption would be granted for TTS in previous “rulemakings”, and some argued that it had been (but that was, at the least, not unambiguous).

I explained that one of the rulings that led to people thinking the exemption had been granted here:

Flash! Hacking Kindle TTS still not legal

I did think that the case was just not as well presented as it could have been.

This time, the bar is lower:

“Unlike in previous rulemakings, the Office is not requesting the submission of complete legal and factual support for such proposals at the initial stage of the proceeding. Instead, in the first step of the process, parties seeking an exemption may submit a petition setting forth specified elements of the proposed exemption, as explained in the notice.”

So, you could submit a petition explaining why it should be legal to circumvent (get around) TTS blocking code, even without citing all the precedent.

A petition, by the way, does not, in this case, mean something with a bunch of signatures…think of it more as a formal request. You don’t need to get a 1,000 people to sign something by Monday to make this work.

I honestly don’t think I’ll get anything submitted this time…but if they don’t rule it as a legitimate exemption this time, I’ll put it on my calendar for three years from now!

I should be clear: people with a certified print disability can use a plug-in with Kindle for PC to make all books TTS accessible, even if the publisher has blocked the access:

Flash! Kindle for PC with Accessibility Plugin makes all books TTS enabled for the print disabled

However, that doesn’t mean you can read it on any Kindle devices. To the dismay of some, the current crop of Kindle EBRs (E-Book Readers…non-Fires) don’t have sound at all, so they can’t do TTS, but that plug-in won’t work for Fires, either.

I’d be delighted to see a ruling that just flat out said that, whether you can certify a disability or not, it’s legal to circumvent DRM for the purpose of TTS access.

I would take advantage of it personally (I currently don’t get books that block the access…nor do I knowingly link to them on this blog), but for me, it’s more about other people. Certifying a print disability can be difficult…and it’s logistically much more complicated for a print disabled family member to get an accessible version and other members of the same family have one accessible to sight-reading. The print-disabled accessible versions often don’t come out at the same time, as just one issue.

Many people with print disabilities would love the convenience of using a

Kindle Fire HDX 7″ (at AmazonSmile: benefit a non-profit of your choice by shopping*)

or other device (I’d linked that one because that’s the one I personally use daily…and regularly for TTS in the car), rather than having to use a PC version or other reader. The HDX has a lot of accessibility features (audible menus, the ability to read aloud what you are touching on the screen), and would be a big plus for that group.

What would happen if they rule that it’s okay for anyone to circumvent for TTS?

I think, right away, we would see apps that could do it…and probably free ones.

Not too long after that, it’s possible the publishers would simply stop blocking it. If the block was ineffective for many people, it might not be worth the costs (it has to cost something to insert the code…and there are public relations costs) to block it.

There won’t be a decision immediately, but virtual fingers crossed…

If you do submit a petition (or have already) and want to share it with me and my readers, feel free to comment on this post. If you have any other thoughts on this (Are there other exemptions which should be in place? Should publishers be able to block TTS to protect audiobook sales?), again, feel free to comment on this post.

Join hundreds of readers and try the free ILMK magazine at Flipboard!

* I am linking to the same thing at the regular Amazon site, and at AmazonSmile. When you shop at AmazonSmile, half a percent of your purchase price on eligible items goes to a non-profit you choose. It will feel just like shopping at Amazon: you’ll be using your same account. The one thing for you that is different is that you pick a non-profit the first time you go (which you can change whenever you want)…and the good feeling you’ll get. :) Shop ’til you help! :) 

This post by Bufo Calvin originally appeared in the I Love My Kindle blog. To support this or other blogs/organizations, buy  Amazon Gift Cards from a link on the site, then use those to buy your items. There will be no cost to you, and a benefit to them.

4 Responses to “Last day to submit petitions for copyright exemptions”

  1. Phink Says:

    Bufo, did you hear about the abandoned Walmart in Texas being turned into the nation’s largest one floor lilbrary? Since this story is two years old I’m guessing so but just in case here ya go.

  2. hsextant Says:

    I don’t mean to be intentionally contentious here, subjectively I agree with you but objectively, I can’t see how you can say TTS is not a potential infringement. I know little about publishing but common sense would suggest that there is a tidy profit to be had in audio versions of books. At least the prices at Audible would suggest so. Are not publishers cutting into their own potential sales by making TTS available to anyone on any device?

    I agree that disabled users should be able to have TTS on a variety of convenient devices and not just the one that has to sit on a desk top at home.

    However I do not understand how making TTS openly available on all e-readers to all users would not be a potential infringement impacting the author, publisher, and audio distributor like Audible.

    Disclosure: yeah I really don’t care for TTS…I do like Audible (or at least I think I do). I am just dabbling in it now that I have my HDX. Actually I am a little fearful of it. I am afraid that I am going to get lazy and only want to listen to books rather than read them. It does not quite seem to be the same process.

    I have found it very nice for the classics…something a little onerous to read…it sort of keeps you going in the book.

    Lest I seem a toadie for the publishers, in a further disclosure, I only buy the Audible versions that are discounted heavily when you buy the kindle version. I bought a wonderful version of Jane Eyre, Kindle 99 cents, Audible 99 cents. What a lovely bargain. I thoroughly enjoyed reading it with immersion reading–audible and kindle together. It would be great to be able to do that on my Paperwhite.

    • Bufo Calvin Says:

      Thanks for writing!

      I will expand on this later because I am on the road, and on my phone but I wanted to give you a quick answer.

      If you look up my post The Disabled Deserve to Read it has a longer explanation, but the key thing is that the rights are specifically spelled out by the copyright office. If text-to-speech made a record of the book that would be an infringement, but streaming is not.

      As to whether it would be a disadvantage or not as opposed to infringement, that is a different question. The quick answer is that audiobook downloads have apparently increased a lot since text to speech became common, making it hard to argue that it has had a depressive effect.

      As I said, more later. 🙂

      • Bufo Calvin Says:

        Okay, let me add a bit more.

        When we talk about “infringement”, we are referring to a specific crime…people commonly refer to “stealing” when someone illegally downloads a book, but it’s really a different thing.

        Here’s that post where I covered this issue in more detail…at least, how it was more than five years ago:

        The Disabled Deserve to Read

        This is the copyright part that protects audiobooks:

        “A. The right to reproduce the work in phonorecords

        It defines a phonorecord thusly:

        “A phonorecord is the physical object in which works of authorship are embodied. The word “phonorecord” includes cassette tapes, CDs, and vinyl disks as well as other formats.”

        There is no phonorecord created with text-to-speech.

        Another key point is what you said here:

        “Are not publishers cutting into their own potential sales by making TTS available to anyone on any device?”

        Publishers do not make TTS available: it is automatically available. That’s why a Kindle can read a personal document with no special preparation for it. What publishers do (at least, the ones who choose to do so) is block the access. If they do nothing, TTS works.

        Suppose some people used a magnifier to read books. It is within the realm of technology for a device to be able to spot a magnifier (not a Kindle Voyage, but a hypothetical device). It is not an infringement to use that magnifier…even though it could cut into the sales of large print books. If the device detected the magnifier and the screen went blank in response, would that be a reasonable use of DRM (Digital Rights Management)?

        What if the publisher decided not to let you read laying down on your back? That might be possible to detect.

        As to whether or not TTS hurts audiobook sales, my intuition is that it helps them by accustoming people to listening to books (if it has any impact…five years later, I still haven’t seen good data).

        At some point, I’ll try to do an analysis…looking at books with TTS and audiobooks, to see if their audiobooks appear to be lower.

        By the way, if you like audiobooks (I’m not a fan, unless I’ve already read the book…I don’t like the actor/author interpreting the characters for me), that’s a reason to consider Kindle Unlimited. Lots of audiobooks available there, although only ones available through Whispersync.

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