So the new Kindle has the Authors Guild up in arms because it reads e-books aloud using a text to speech algorithm.

“They don’t have the right to read a book out loud,” said Paul Aiken, executive director of the Authors Guild. “That’s an audio right, which is derivative under copyright law.” [WSJ]

So, is electronically reading a book aloud infringing the author’s copyright?

The Authors Guild analysis fails for two major reasons: no creativity and no fixation.  In order to be copyrightable, even derivative works have to be minimally creative.  An audio recreation of this sort is doubtfully creative because it is merely a software translation; the application doing the text-to-speech may be creative, but its use is probably not.  Essentially, an audio recreation of the book cannot be a derivative work or a copy because copyright law requires derivative works or copies to be in a fixed medium.  Ephemeral sounds simply don’t cut it, at least according to the 9th Circuit.

So it seems like Kindle is in the clear, but who knows.  If there is enough at stake, they may go at it in court.