Roy Blount, Jr., president of the Authors Guild, has published an op-ed in the New York Times today that presents his organization’s argument against the Kindle 2′s text-to-speech (TTS) functionality. As you’ve probably heard by now, the Authors Guild is crying foul at the TTS capability of the new Kindle, saying it infringes on the audio rights of books, which authors negotiate separately from ebooks.

This isn’t the first time the Authors Guild has fought new technological advances. They only recently settled a lawsuit against Google to the tune of roughly US $125 million, alleging that by scanning copyrighted works from library collections, Google was violating copyright. It’s unfortunate that Google settled instead of going to trial, as the case would have likely been decided in Google’s favor and would have helped preserve fair use rights for the public.

And now, emboldened perhaps by the windfall of cash Google handed them, the guild is going after another online behemoth: Amazon. Though they’ve filed no lawsuit yet, I’m suspicious of their current saber-rattling in the media; they said they were just taking a look at the TTS functions, but today’s op-ed sounds like a pretty neatly wrapped argument that will lead to another class action lawsuit.

What the guild is asserting is that authors have a right to a fair share of the value that audio adds to Kindle 2’s version of books.

For the record: no, the Authors Guild does not expect royalties from anybody doing non-commercial performances of “Goodnight Moon.” If parents want to send their children off to bed with the voice of Kindle 2, however, it’s another matter.

To me, the decision here is far simpler than the Author’s Guild is making it out, and maybe it shows that copyright law is trailing technology (a not infrequent occurrence these days), and that the Authors Guild is out of its depth when it comes to competently preserving the rights of authors. That’s not just snark–I mean that seriously.

The distinction between usage rights shouldn’t rest on how the work is presented–which is what the Authors Guild is doing, and which focuses too much on the device–but rather on how the work is produced in the first place. In other words, an ebook can obviously be presented according to whatever capabilities the device has, but it was still produced as an ebook.

The Authors Guild is confusing ebooks with printed books, I think, and that’s causing them to further confuse “any audio” with “audio performance rights,” under the mistaken assumption that an ebook should only ever be quietly read. But it’s not that unreasonable to imagine a future where some clever programmer or engineer comes up with a program or device that takes the text of an ebook and translates it into musical patterns, or colors, or crudely animates it using stock cartoon characters saved onto the device. Or maybe it “reads” the ebook aloud using a synthetic approximation of your own voice. None of these things should constitute an audio performance in the traditional audiobook sense, as each one is an ad-hoc, unrecorded, non public presentation of the ebook text.

To me, this distinction makes it clear what the Authors Guild should be fighting for, and that’s an expansion of the potential value of ebook rights. That may sound like splitting hairs, but my point is this has nothing to do with ebooks encroaching on the audiobook market (a dubious claim until computers can deliver the full suite of production values and unique human performances that make up an audiobook–in other words, never). What they should be doing is publicizing the fact that the Kindle 2′s TTS function demonstrates the amazing elasticity of an ebook, and that the presentation capabilities of an ebook are limited only by the current technology.  They should be negotiating for a bigger slice of the ebook pie with publishers, not confusing the current state of ebook technology with a decades old audio-technology.  If I were a member of the guild, I’d be annoyed that my dues were being wasted right now fighting the wrong Goliath. Go! Negotiate with publishers for the fair value of your ebook rights!

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As you can probably guess, I’m not a big supporter of the Authors Guild. I believe in the power of unions and guilds, but when they impede on technological progress that helps the consumer, they no longer function in a constructive way. Interfering with fair use when it comes to building a massive public database (as in the Google suit) or trying to narrowly restrict the definition of ebook in a way that will harm future ebook device innovation, as they appear to be considering currently, makes them the bad guy. Blount writes, “for this [opposition to the Kindle 2 TTS function], the guild is being assailed.” Rightfully so.

The Kindle Swindle? [The New York Times]