Here´s the problem with your argument. A Kindle, by itself, cannot infringe on copyright. The infringement, if it is one, doesn´t occur until the user instructs the device to read the text aloud. So really, what needs to happen (legally speaking) is that the user must infringe on copyright by using TTS, and the Kindle must vicariously or contributorily infringe by allowing that infringement.

The device itself cannot infringe.

So you can´t parse so finely. If the user has the right, Amazon has the right to allow the user to do so. Amazon´s right or infringement must be subsidiary to the users.

I know the following will be time consuming to read, sorry in advance for that. (And I have no finger-paints!) but I have some doubts over whether some of your arguments obtain. I guess the central thing is that there’s a whole area quite explicit to copyright that would be helpful to explore, which is the relationship of copyright to the public interest. Copyright essentially is the establishment (and I’m speaking informally here) of certain rights as reserved to the creator of an artistic work in contravention (sorry for the big word, I can’t think of the small one right now) of the public’s overall free use of ideas, language, etc. In other words, the rights protected under copyright are plucked from the cultural stream and isolated. Assuming the creator of the work doesn’t want to print out the manuscript and hide it under his/her mattress, he/she has a right to license and profit from licenses in various rights (sorry, I know you covered some of this above). But as these rights are set aside from public use, people (or unlicensed companies) cannot abrogate those rights in any way, and that stipulation is crucial. It is not so much the question of whether one can publically use someone else’s creative material, but whether one can profit from such use. I can read a work aloud to someone, sure (thank god for water!), but I cannot, seriously, read the work aloud in public if they’re paying to hear me do so. Now you might think that doesn’t bear on what you’ve discussed above, but keep with me. When a creator licenses some kind of right in their creative work, the licensor of that particular right now holds it as if they were the creator (subject to any limitations in the contract). In other words, the licensee substitutes for the copyright holder in terms of the rights enjoyed separate from the public’s use. So my two questions are: does the commercial bundling of talking-book technology along with a text of a work abrogate the licensee’s reserved right (reserved from the public) to solely enjoy profit from the rights they hold? And if I’m that licensee (a publisher)and I haven’t licensed the audio rights from the creator, only text rights, can I distribute my text product to an entity like Amazon to enjoy and sell to the public as a text/reading? It seems to me not. The second question, which is related, is are these talking book rights separate from audio rights or even possibly are they even a third kind of right separate from both text rights and audio rights? (Interesting to note that whether it’s one case or the other, book publishers in their contracts have always included talking book rights as a separate right granted, so setting aside their status under copyright, the publishing industry has always treated them separately.) To get back to the first question, I make the distinction like this: clearly you have the right to privately read your book to yourself, your neighbors, your cat, but not to people for cash money. And second, you have the right to buy a computer program that turns that text into speech, but you can’t then set that computer up on a stage (god forbid the sorry results of that) and have it talk to an audience whose sorry ass wallets have been lightened for the privilege. This also applies, crucuially, to putting it on the radio, where people alone in their own homes can listen to it, consituting the public. All this is germane, because Kindle is a device that is sold (at $349, I think) as a device that can read to you or anyone, or the public, whatever. There, it is Amazon that is giving you “a ticket” essentially, to hear the work spoken. If it is a feature that is inherent in the value of the device itself, and they are selling these works as downloadable on that device intrinsically, then it seems that talking book rights contributes to the value of the device. Whether they’re making a penny or a million exra for providing the feature, they’re profiting from rights they haven’t necessarily been grantedd to profit from, and they are charging the public for the privilege to hear. Setting aside that I think the idea that a talking book feature creates any sort of enjoyment whatsoever, while you yourself have the right to enjoy hearing creative works read on that Kindle in all it’s robotic stentorian tones, it’s probably the case that Amazon ain’t got the right to profit from selling to many peoples (the public) the device or “the work through the device” made more valuable/sellable because those people (whether separate or apart) can listen to the Kindle read it aloud.

Abstruse and recondite and I wish I had finger-paints…

Good post. I especially like the big glass of water and a lot of time part. I used to read aloud entire long chapters of the Dream of the Red Chamber to myself. Even chapters of the Bible, ones full of gems and descriptions on how to build nice things. Good to know I had every right to it.