Monday, July 26, 2010

DRM exemption on Text-to-Speech + Kindle 2 temporarily out of stock.

Ars Technica's Nate Anderson writes that the Library of Congress listens every three years to complaints about the Digital Millennium Copyright Act ('DMCA') and has forbidden most attempts to bypass digital locks on such items as DVDs, music, and computer software but has also been able to make some "DRM cracks" legal for three years at a time.

  The Librarian of Congress has made a ruling July 27, 2010, allowing exemptions to Title 17, Section 1201(a)(1) for six classes of works that now

  "...will not be subject to the prohibition against circumventing access controls (17 U.S.C. § 1201(a)(1)) until the conclusion of the next rulemaking." -- which would be in 3 years.

No. 6 affects text-to-speech disabling in e-books and reads:
' (6) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format. '

Anderson explains:
' Amazon may have clamped down on the feature in response [to publisher demands], but the Library of Congress has now given users the right to crack e-book DRM in order to hear the words.  Exemption number six only applies in cases where there is no alternative; if e-book vendors offer any sort of version that allows screen-reading or text-to-speech, even if the price is significantly higher, people must use that version rather than bypass DRM.

But if there are no commercial alternatives, e-book buyers are at last legally allowed to bypass DRM. '

This is rather huge!  I wrote this week the following to a Random House staffer responsible for distributing Random House PR for newly released or highlighted books:
" I'd like to make a request that they go lighter on allowing people to use the text-to-speech mechanism during times like commutes or dish-washing but especially for those who are visually impaired and for whom these words are even more food than they are for the rest of us.

  The Kindle voice cannot compete with well-read and acted fare such as the Audible books. It's utilitarian.

  I don't like that the disabled have to practically beg and 'prove' themselves worthy of listening to a mechanical voice. "

So, this is a very interesting and welcome development.

UPDATE - This development is being discussed at the Amazon Kindle forums.

UPDATE2 - Wouldn't it behoove Amazon to ENABLE text-to-speech on all Kindle books (despite publisher demands otherwise) rather than have people tinkering with DRM fixes that will now be coming out, which could affect the entire file?

Does this mean something newish might be coming?  (I don't know.)

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  1. Andrys, unfortunately, this ruling is the same as it has been, and it does not allow circumventing of DRM to enable TTS on Kindle books. I'm seeing this quite a bit today. Note that it is only legal if NO version of the ebook has "read aloud" enabled. If the publishers enable TTS on a version that requires print disability certification, such as those at, it is legal for them to block it on Kindle store books...and illegal to hack the DRM for that purpose.

  2. Bufo,
    I disagree with you precisely for the reasons given by Ars Technica.

    People must use AN enabled version that is available but they can't because it is not commercially available to them as you must pass a proof of disability before being allowed to access it and the new ruling is for anyone, not just those unable to read visually.

  3. But the quote you have has this language:

    "all existing ebook editions of the work (including digital text editions made available by authorized entities)"

    That means that if one of the books made available by authorized entities (that has to do with the Chafee Amendment) has read aloud, the circumvention exception is not available.

    Have you read the earlier version of the Final Ruling? That makes it more explicit, and this doesn't change it that I can see.

  4. Bufo
    The key is that they are NOT made available to you or to me. That is key, as I said.

    I quoted all of the parts pertinent to many who are writing about this (and to me) and it's almost universally understood that this means a separate "AVAILABLE" edition that has it enabled that we are ABLE to get, even if higher priced.

    Those "editions" you cite are determined only on proof given by someone who has a visual limitation. They all have the 'controls' that can include disabling. They must be 'made available' and they are not, to you and to me.

    I'd read the many articles that are out there, some by legal beagles. Maybe it'll give you some reason for optimism about the issue you care about.

  5. I'd be happy to read more about it. I commented the AT article as well. The language is very close to the language in this version:

    where it is made clear, in my opinion.

    That includes this language:

    "...the exemption is not available if any existing edition of the work permits the “readaloud” function or is screen reader-enabled. Thus, a publisher may avoid subjecting any of its works to this exemption simply by ensuring that for each of its works published in ebook form, an edition exists which is accessible to the blind and visually impaired in at least one of these two ways."

    It specifically states that the availability has to be for the "blind and visually impaired"...not the general population.

    I'd be particularly interested in articles you've found from intellectual property lawyers that add this "commercial availability" requirement for people without certified print disabilities. I don't see that in the earlier version or in the new version of the ruling.

    My guess is we may get another clarification of some kind from the LoC, if this new interpretation continues to circulate.

    As you know, I'd love it if all books were text-to-speech enabled...but I don't see how this does it.

  6. It doesn't matter. If the statement of the librarian of congress is correctly quoted, whether that version with TTS enabled is available to you or not is irrelevant.
    All that would matter if that it exists at any price (and implicitly for any group of people).
    Nowhere does it state it must be available to you specifically.
    So if bookshare has a version with TTS but it's only available to the legally blind, you and I can't legally crack the DRM on a Kindle version of that same work despite not having access to that bookshare version.

    Of course another loophole is that "price" doesn't have to be monetary. If becoming blind so you can get it from bookshare is considered a price, all bets are off.

  7. Bufo, this is what I'm seeing currently ...

    The Librarian said this in today's ruling:

    "Today I have designated six classes of works. Persons who circumvent access controls in order to engage in noninfringing uses of works in these six classes will not be subject to the statutory prohibition against circumvention.
    ... [the one re TTS]
    Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling either of the book’s read-aloud function or of screen readers that render the text into a specialized format.

    This is it:
    "when all existing contain access controls that prevent the enabling"

    They all do contain access controls that prevent the enabling.

    He doesn't say that they must all be set to prevent enabling....

    And he doesn't restrict these to make them enabled for those who have visual impairments.

    The wording in this has changed from before and he says "but some of the classes have changed due to differences in the facts and arguments presented in the current proceeding."

    Currently, everything I read today sees the newly worded ruling as okaying circumventing access controls in order to engage in noninfringing uses of works ...

    Now, everyone who thinks it does (and I) may all be wrong ... but the jury is more or less out on that at this point.

    I do think he could have been clearer and maybe he'll say something.

  8. Bufo,
    I deleted one of my notes because I now see why you quoted the older one one from 2003-2006.

    The question I have is why he has not included the elaborate explanation this time or changed the wording so that it's not the controls existing but the 'enabling' of one -- which does not make it an 'existing edition' but an edition that provides for enabling under what I consider demeaning conditions.

    Also, I have a problem with the idea that there is an 'existing edition' that allows it.

    They all have controls that allow it if people go to the trouble to provide proof that they have a visual disability and then that edition does not 'exist' on its own so much as a control that once disabled a feature then later enables it not as an 'edition' but as a particular file-setting for a special condition that requires application for approval.

    Actually, they all "disallow" it as well, when Random House's disables the feature by default -- unless one goes through a troublesome application process.

    The wording, as it stands, is just full of loopholes.

  9. jwenting,
    They're all "versions with TTS" that are being sold (all with the default 'no' setting, in fact) and are all the same -- it's the control setting within the same-edition that can be reset later upon a (what I consider demeaning) application process.

    They don't exist as separate existing editions.

    That may be laying too fine a point on it, but right now it's too open to interpretation.

  10. We're still seeing this differently, which, as you suggests, means it could be clarified. For me:

    Does the BookShare edition exist? Yes, in many cases that I've checked.
    Does it "...contain access controls that prevent the enabling either of the book’s read-aloud function"? No.

    It may have access controls that could prevent the enabling but it doesn't.

    I think the Librarian may have overestimated people's familiarity with the term "authorized entities", and how that applies to the Chafee Amendment. You can read information on that here:

    which includes this:

    "The Chafee amendment to chapter 1 of title 17, United States Code, adds section 121, establishing a limitation on the exclusive rights in copyrighted works. The amendment allows authorized entities to reproduce or distribute copies or phonorecords of previously published nondramatic literary works in specialized formats exclusively for use by blind or other persons with disabilities."

    To me, the use of the term "authorized entities" immediately made me think of the Chafee Amendment, where that specific language is used...and applies to those who provide special editions for people with print disabilities.

    I've asked the Copyright Office for a clarification. They may decline to answer it on the basis that it is a legal question, but I'll share with the community what I find out.

  11. Bufo,
    Could you provide a link to the Bookshare edition that's available? I retweeted your own article on all this last night. When you say you found it many times, it makes me wonder if it's readily available. And certainly would be restricted to certain groups. See below...

    You say ---- "It may have access controls that could prevent the enabling but it doesn't. "

    Does it have access controls or doesn't it?
    I'm assuming you mean that it may have them but that they don't, in these cases, prevent the enabling.

    For how people of all stripes are interpreting this, see

    It'd be good if you put comments on some of those more highly traffic'd news sites as well.

    In the meantime forum has a good thread on it from all sides:

    The following addresses (but doesn't resolve) your main point of concern and it continues there.

    ==== Quoting of two notes ====
    "Quote: Originally Posted by wallcraft
    'I am talking about what "authorized entities" means, and as you suggest, what it means comes from the Chafee Amendment. Recall that the anti-circumvention exemption in question says:...'

    That definition of "authorized entity" is coming from Chapter 1 Section 121 of copyright law, which is specifically about "Limitations on exclusive rights: reproduction for blind or other people with disabilities". In the scope of Section 121, they're talking about limitations of copyright itself in the case of people with disabilities. That part of copyright law has nothing to do with DRM.

    What we're talking about is Chapter 12 Section 1201, which is specifically about "Circumvention of copyright protection systems", specifically circumvention of technological measures that effectively control access to a copyrighted work (aka DRM). That section has nothing to do with being disabled, blind, or visually impaired. If there is a digital text edition from an authorized entity available without TTS restrictions, then that particular work probably fails the "all existing ebook editions of the work" clause.
    However, nothing in this Section of copyright law says you have to be disabled in order to qualify for the exception if there are no existing ebook editions available that allow TTS.

    In other words, if there are versions available with TTS, then use them. If there are not, then you are allowed to bypass the protection system. The only qualification is that it is for a non-infringing use and that you are adversely affected. It has nothing to do with whether or not you are disabled."
    [Elfwreck adds] "Individual ability to circumvent DRM seems to be allowed to anyone adversely affected by the restriction of TTS, but individuals have no additional right to share/transfer their nonDRM'd versions with others."
    ==== End of quoting from Mobile Read ====

    You should definitely join that but also comment on the most highly traffic'd news sites that are citing this as allowing circumvention of the disabiling of text-to-speech where enabled editions are not available to you.

  12. I appreciate the link to the long the "all stripes" site...I'll try and look at it later.

    The statement is "...contain access controls that prevent the enabling..."

    It's not whether they contain the controls at all and whether or not they are used. It says specifically, "...that prevent..."

    Not "...that could prevent..."

    While admittedly legal language doesn't always conform to the way language is commonly used, I don't see a reason to interpret it differently in this case.

    I also see nothing that says that the question about accessibility has to do with the individual. Adding "commercial" or "you or me" or "could" seems to me to be adding modifiers that could be changing the original statement.

    Have you read the relevant section in the Recommendation of the Register of Copyrights that is on the same page to which you link? It's fairly lengthy, but gives some interesting insight. It includes this section:

    "If an accessible ebook edition of a work is available in the marketplace or a digital text is available through a § 121 authorized entity, then the exemption does not apply."

    wallcraft is correct that Section 121 deals with authorized entities and the disabled...and that is precisly what the Register addresses here. The use of "access controls" (DRM...Digital Rights Management) in relation with the print disabled has been discussed in previous say they have nothing to do with each suggests a limited reading of the relevant materials.

    If anyone does chose to read that, they'll see that "adversely affected" had to be proven. I think it's fair to say that the Register chides the AFB (American Foundation for the Blind) for the quality of evidence they present.

    Elfwreck's comment could be taken to suggest that someone could self-assess being "adversely affected"...if that was the case, the Register wouldn't discuss evidentiary presentation, in my opinion.

    Oh, and to be clear, the Register's recommendation isn't the finding, but is provided by the Copyright Office as well.

    I'll let you know if I hear back from the Copyright Office.

  13. This whole TTS thing is really silly.

    Regardless of what the legality is or is not, publishers should make whatever agreements they need to in order to make their ebooks TTS accessible. If that means charging a little more for an ebook so they can pay a royalty to the appropriate audiobook rights-holder, they should make those arrangements. We'd find out soon enough what the market would bear, but hopefully it would be less than a dollar more, considering the relative quality of synthesized vs. professional speech at present.

    As it is, TTS-enabled books win out over TTS-disabled books when I pick something from my wish list at least 90% of the time. I use TTS frequently (if not for extended periods). I don't buy more audiobooks as a result (I have an Audible subscription but cannot even keep up with the 1 per month plan.) So publishers are shooting themselves (and their authors) in the foot by restricting it.

    Amazon hopefully is working on hybrid or compound media that includes both text and audio performance, playable on Kindle or Kindle apps. I like audiobooks, but they'd be more attractive to me if they included text for quiet reading sessions, annotation, and text search etc. They are well positioned to do this since they own Audible... Of course such books would not be on your Kindle in 'less than a minute' given current bandwidth limits...

  14. Bufo,
    You may not see a reason to interpret it differently (as others do), as you say, because at this point you may not particularly care to as it's an airtight situation in your eyes.

    The sentence CAN well be interpreted as "having controls that prevent the ability to access it." Logically they can also have controls that enable the abitility to access it.

    That they are set to No to people who don't prove disability and there is NO existing TTS edition for those people is of no concern to you, from what I can see, as it is to others on the forum I pointed you to.

    You've made your choice as if it were a certainty -- it's a possibility and maybe even a probability!, but I'm concerned you've chosen to be 100% certain of it.

    Others have given reasons why they feel the DRM section affects those who CANNOT get access to an enabled edition and that the party does not have to be disabled for the reasons given. You disagree.

    I understand you will see it as just realizing a very definite reality while the rest of the world ignorantly prefers to see more gray in it. Those with high hopes have been wrong before but generally don't give up easily.

    Nothing changes the original statement, as you put it, more than your citing of past wording. I agree that this was instigated by those with visual impairments but the writing of the DRM section does not limit it to them.
    And some don't feel that 121 applies to the DRM.

    Yes, I read the 2010 version of that and again you're ignoring the issue of limitations of copyright itself in the case of people with disabilities. That part of copyright law is felt by some to have nothing to do with DRM as outlined in yesterday's 1201.

    Re those who apply and get exemptions to not have the TTS disabled -- how does this affect the existence of an available edition for those who do not qualify for the exemption? Is there an existing edition for them?

    This can end in one of two possible ways - it is as rigid as you say it is, or it's not. But you're totally certain it can only be in one way. I think we can both hope you're not totally correct here.

    Again, I encourage you to participate in discussions that are more viewable than this comments area which is not included in the blog feeds.

    The Copyright Office should respond to you - the whole idea is to be clear. If they haven't been clear enough, then more is needed.

    I can't imagine they'd just ignore a request for clarification.

  15. Bufo,
    Ironically, those visually impaired have a weaker case than those of us without an existing edition available even if they have to grovel for that access.

    So, it is to be determined that we cannot choose to have the words read to us in a computerized monotone when the publishers insist on forbidding that.

    As has been mentioned, I'd love to see this brought up the ladder. On that, we probably agree.

  16. On the possibility of a "newish" K2 or say GK2i, say August 1st, what is interesting to ponder is the K2i drop in price was a response to the nook price cut. This resulted in Amazon tripling sales of the K2i, a large portion of which they'll have to take back due to their 30 day return policy if a new model comes out. Pretty gutsy move just to stop people from buying nooks before their new offering is unveiled. OR...does the K3 get released 30 days from NOW to avoid all those returns? Kindle intrigue

  17. PaulGuy,
    I've been wondering about eventual pricing for a newer model too. I've also wondered about Cole Hahn suddenly selling its most popular cover at 50% off. Rumors of a 'slimmer' model (how can it be slimmer?) + the ongoing Cole Hahn sale make me wonder if this will be a bit more different than we we think in form.

    Will there be a WiFi capability? I think you're right they'd want to wait the 30 days from the $189 announcement just to fend off the logistics problem. But I'd be happier to see something happen sooner.

    I think their server calculations and processes were all in place when the Nook pricing went down and that they wanted to compete only against another dedicated e-reader. Therefore, in my view, they were waiting for B&N to set new pricing and then jumped on it, all processes operating smoothly within a couple of hours and customer service reps aware of return policies on new pricing.

    B&N itself was not as clear, with phone and store reps telling customers at first there was no refund or credit. That changed later. I don't think it was pure reaction to a surprise but a plan put into effect. But that's just my take...

  18. Tom,
    Agree with all your thoughts though I'm happy enough with Audible books staying just audio. Maybe an add-on price for the text copy in e-format.

    Love the idea of a little bit more $ for TTS version but not much more since I sometimes can't stand to listen to it.

  19. You certainly could be right about how Amazon played it with the nook. Their "reaction" was certainly seamless.


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