Sunday, March 01, 2009

Amazon Kindle - if a software agent reads a book aloud is that a performance or the creation of a derivative work?

The recent uproar over the read-aloud feature of the new Amazon Kindle book reading device has raised some fascinating questions related to the definition and interpretation of the concepts of a performance and a derivative work, as well as the concept of licensed use. I would add that this dispute also raises the issue of the role and status of software agents.

An article in Ars Technica by Julian Sanchez entitled "Kindles and "creative machines" blur boundaries of copyright" does a decent jobs of covering both the pros and cons and legal nuances of the "rights" for electronically reading a book aloud.

I have read a lot of the pro and con arguments, but I am not prepared to utter a definitive position at this time.

I would note that there is a "special" context for the entire debate: the ongoing "culture war" between the traditional world view of people, places, and things and the so-called "digital" world view, whether it be online with the Web or interactive within a computer system. Clearly there are parallels between the real and "virtual" worlds, but also there are differences. Rational people will recognize and respect the parallels even as they recognize and respect the differences. Alas, there is a point of view that insists that the virtual worlds (online and interactive) should not be constrained in any way by the real-world world view.

The simple truth is that the real and virtual worlds can in fact coexist separately, but the problem comes when we try to blend the two worlds and pass artifacts between them. Then, the separateness breaks down. The Kindle is a great example, with real-world books being "passed" into the digital world and then the act of electronically reading them aloud passing back from the digital world to the real world.

It is also interesting to note that many books are now actually created in the virtual world (word processing, storage, transmission, digital printing) even if not intended specifically as so-called e-books, so that physical books themselves in fact typically originated in a virtual world. Clearly the conception of the book occurs in the mind of the author and the editors, but the actual "assembly" of all of the fragments from the minds of authors and editors into the image of the book occurs in the virtual world.

In any case, my interest is in the role of software agents. A software agent is a computer program which possesses the quality of agency or acting for another entity. The Kindle read-aloud feature is clearly a software agent. Now, the issue is whose agent is it. The consumer? Amazon? The book author? The publisher?

The superficially simple question is who "owns" the software agent.

We speak of "buying" books, even e-books, but although the consumer does in fact "buy" the physical manifestation, they are in fact only licensing the "use" of the intellectual property embodied in that physical representation. You do in fact "own" the ones and zeros of the e-book or the paper and ink of the meatspace book, but you do not own all uses except as covered by the license that you agreed to at the time of acquisition of the bits. Clearly not everyone likes or agrees with that model, but a license is a contract and there are laws related to contracts. Clearly there are also disputes about what the contract actually covers or what provisions are enforceable. That is why we have courts.

So, the consumer owns the bits of the read-aloud software agent, and the consumer may have some amount of control over the behavior of that software agent, but ownership and interaction are not the same thing.

I would suggest that the read-aloud software agent still belongs to Amazon since it remains a component of the Kindle product. A Kindle reading a book aloud is not the same as a parent reading a book to a child or a teacher reading to a class (or the reading in the movie The Reader), in particular because it is Amazon's agent that is doing the reading.

An interesting variation would be an open source or public domain version of Kindle as downloadable software for the PC, or software with features different from Kindle for that matter. Who "owns" any software agents embedded in that software? Whose agent is doing the performance? Whose agent is creating derivative works? To me, the immediate answer is who retains the intellectual property rights to the agent. In the Kindle case, Amazon is not attempting to transfer all rights. Even if they did, there is the same question as with file-sharing software, whether there is some lingering implied liability that goes along even when ownership is transferred.

Another open issue would be software agents which completely generate content from scratch dynamically, not from some input such as an e-book data stream. Who owns that content? I would suggest that the superficial answer is that the owner of the agent owns "created" (non-derivative) content, except as they may have licensed transfer of ownership of such content.

Another issue is whether a "stream" can be considered a representation. I would think so. One could also consider it a performance of an implied representation. Whether each increment of data in the stream is stored may not be particularly relevant. The stream has most of the "effect" of a full representation.

Another issue is trying to discover the intent or spirit of the law as opposed to the exact letter of the law. Sure, there are plenty of loopholes and gotchas that do in fact matter when in a courtroom, but ultimately I would think that it is the intentions that matter the most to society. Unless, you are a proponent of a "free" digital world that is unencumbered by any constraints of the real world and seeks to exploit loopholes simply because "they are there."

In any case, my point is not to settle the matter, but to raise the issues of performances and creation of derivative works in the realm of software agents, both for developers of software agent technology and those who seek to deploy it. And we have this issue of what lingering liability tail connects software agents and their creators.

-- Jack Krupansky

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