Friday, February 27, 2009

Amazon Kindle 2 v. Authors Guild: An existential battle over "derivative works"?


A recent legal scuffle between Amazon and the Author’s Guild over the audio book playbook firmware devices called Kindle 2 may stir a new battle in copyright law over the concept of derivative work.

A long article by Julian Sanchez in Ars Technica, “Kindles and "creative machines" blur boundaries of copyright”, link here. The article (Fen. 26, 2009) refers to an original Wall Street Journal story Feb. 10 by Goeffry A. Fowler and Jeffrey A. Trachetenberg, “New Kindle Audio Feature Causes a Stir”.

The Authors Guild, known for its turf protection (it only accepts authors who can generate royalty advances as members, or at least that’s how it was the last time I looked) naturally claims that this “derivative work” creation without authorial or publisher’s permission violates copyright law, and denies authors of income (hence is not fair use). They probably won’t get far with any downstream liability claims because of Sony Betamax, and because there are lots of noninfringing uses.

The article goes into detailed theories about how much transformation is necessary to make a new work independent and derivative. I wondered: if a composer writes a “Theme and Variations” on a copyrighted song, is that a derivative work? The “Theme and Variations” is a well established musical form that usually implies a separate work (look at the piano music of Brahms, for example).

Sam Gallagher has an important story today on Market Watch about Kindle 2,
here, indicating that analysts like the prospect of the product.

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