copyright
Why are non-radio reading services not in violation of copyright infringement in the U.S.?
<p>By <strong>reading services</strong> I mean services that make print materials accessible for <a href="https://www.law.cornell.edu/definitions/uscode.php?width=840&amp;height=800&amp;iframe=true&amp;def_id=17-USC-698636734-64618111&amp;term_occur=999&amp;term_src=title:17:chapter:1:section:121" rel="noreferrer">eligible persons</a> and provides access to this content by means other than radio broadcasting and using <a href="https://en.wikipedia.org/wiki/Radio_reading_service#:%7E:text=radio%20receivers%20permanently%20tuned%20to%20a%20given%20station" rel="noreferrer">specialized receivers</a>. Examples of such services are <a href="https://nfb.org/programs-services/nfb-newsline" rel="noreferrer">NFB Newsline</a>, <a href="https://nlsbard.loc.gov/nlsbardprod/login//NLS" rel="noreferrer">NLS BARD</a>, <a href="https://brailleinstitute.org/books-for-visually-impaired/telephone-reader-program" rel="noreferrer">the Braille Institute's Telephone Reader Program</a>, etc.</p>
<p>I understand that these programs make copyrighted material available <strong>exclusively</strong> to people who can prove that they have eligible disabilities (i.e., they have to register and use secret credentials to listen to the content).</p>
<p>It seems though that the copyright law of the U.S. does not explicitly permit this use case, and I base this on what I have found so far:</p>
<ul>
<li><p><a href="https://www.law.cornell.edu/uscode/text/17/110" rel="noreferrer">(<strong>17 U.S. Code § 110(8)</strong>) U.S. Code, Title 17, CHAPTER 1, § 110(8) - Limitations on exclusive rights: Exemption of certain performances and displays</a></p>
</li>
<li><p><a href="https://www.law.cornell.edu/uscode/text/17/121" rel="noreferrer">(<strong>17 U.S. Code §121</strong>) U.S. Code, Title 17, CHAPTER 1, §121 - Limitations on exclusive rights: Reproduction for blind or other people with disabilities</a></p>
</li>
<li><p><a href="https://www.law.cornell.edu/uscode/text/17/121A" rel="noreferrer">(<strong>17 U.S. Code § 121A</strong>) U.S. Code, Title 17, CHAPTER 1, §121A - Limitations on exclusive rights: reproduction for blind or other people with disabilities in Marrakesh Treaty countries</a></p>
</li>
</ul>
<h2>17 U.S. Code § 110(8)</h2>
<p>Paraphrasing:</p>
<blockquote>
<p>[<em>It is not infringements of copyright when a</em>] performance of a nondramatic literary work [<em>is transmitted</em>] through the facilities of:</p>
<ul>
<li>(i) a governmental body; or</li>
<li>(ii) a <a href="https://www.law.cornell.edu/definitions/uscode.php?width=840&amp;height=800&amp;iframe=true&amp;def_id=47-USC-247013569-896250776&amp;term_occur=999&amp;term_src=title:47:chapter:5:subchapter:III:part:IV:subpart:e:section:397" rel="noreferrer">noncommercial educational broadcast station</a> (as defined in section 397 of title 47); or
<ul>
<li>(iii) a radio subcarrier authorization (as defined in <a href="https://www.law.cornell.edu/cfr/text/47/73.293" rel="noreferrer">47 CFR 73.293</a>, <a href="https://www.law.cornell.edu/cfr/text/47/73.295" rel="noreferrer">47 CFR 73.295</a>, <a href="https://www.law.cornell.edu/cfr/text/47/73.593" rel="noreferrer">47 CFR 73.593</a>, 47 CFR 73.595 (?)); or</li>
</ul>
</li>
<li>(iv) a <a href="https://www.law.cornell.edu/definitions/uscode.php?width=840&amp;height=800&amp;iframe=true&amp;def_id=17-USC-653172878-93245340&amp;term_occur=999&amp;term_src=" rel="noreferrer">cable system</a> (as defined in section 111(f));</li>
</ul>
</blockquote>
<p>This section specifically refers to <a href="https://en.wikipedia.org/wiki/Radio_reading_service" rel="noreferrer">radio reading services</a> that have a long history in the U.S., but none of the cited sections include phone systems or mobile applications.</p>
<h2>17 U.S. Code §121 &amp; 17 U.S. Code §121A</h2>
<p><sup>NOTE: Mentioning these two together as the latter is the an extension of the former with regards to jurisdiction of member countries of the Marrakesh Treaty.</sup></p>
<p>Copyright limitations in §121 and in §121A apply to <a href="https://www.law.cornell.edu/definitions/uscode.php?width=840&amp;height=800&amp;iframe=true&amp;def_id=17-USC-1354729773-364936160&amp;term_occur=999&amp;term_src=title:17:chapter:1:section:121A" rel="noreferrer"><strong>copies</strong></a> and <a href="https://www.law.cornell.edu/definitions/uscode.php?width=840&amp;height=800&amp;iframe=true&amp;def_id=17-USC-791306774-364936160&amp;term_occur=999&amp;term_src=title:17:chapter:1:section:121A" rel="noreferrer"><strong>phonorecords</strong></a> where</p>
<ul>
<li>
<blockquote>
<p>“<strong>Phonorecords</strong>” are <strong>material objects</strong> in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “phonorecords” includes the material object in which the sounds are first fixed.</p>
</blockquote>
</li>
<li>
<blockquote>
<p>“<strong>Copies</strong>” are <strong>material objects</strong>, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term “copies” includes the material object, other than a phonorecord, in which the work is first fixed.</p>
</blockquote>
</li>
</ul>
<p>Both terms are defined as &quot;material objects&quot; which I would interpret as palpable, physical objects such as <a href="https://www.loc.gov/nls/enrollment-equipment/equipment-needed-for-nls-materials/cartridges-cables-for-bard/" rel="noreferrer">the specialized equipment of the NLS (i.e., USB cartridges and talking book machines)</a> but mere files (e.g., digital audio recordings) would not belong to this category. <a href="https://law.stackexchange.com/a/57863/28859">This answer</a> also supports this notion.</p>
<p>Unless, the alternate interpretation of &quot;files <strong>stored on a physical storage device</strong>&quot; (which is always the case) is also acceptable; this way,</p>
<ul>
<li>the service's servers store the files on their hard drive (or other storage device)</li>
<li>the user usually downloads it to a storage device (e.g., hard drive, USB stick)</li>
<li>the mobile app that caches the file from the service's server is a non-physical container similar in function to the USB cartridges (as in specialized access)</li>
</ul>
<p>The reasoning in the first two items seem week, but I would compare them to <a href="https://law.stackexchange.com/questions/49437/reading-books-in-public-copyright">when someone borrows a book from a library and reads it in public</a>.</p>
<hr />
<p>Please educate me if I'm misinterpreting the above parts of the U.S. code and/or missed relevant sections of it that pertain to these use cases.</p>

<p>Copyright law treats computer files containing text as &quot;copies&quot; and computer files containing sound as &quot;phonorecords&quot;. Indeed it must, otherwise there would be no copyright protection for ebooks and for downloadable music. Thus, I would take 17 U.S. Code §121 to apply. The word &quot;material&quot;  in copyright law has been held to include &quot;stored in electronic form on any storage device&quot; so that the key requirement for an initial copyright, that the work be &quot;fixed in a tangible form&quot; or &quot;fixed in any tangible medium of expression&quot; is satisfied by a computer file, see <a href="https://www.law.cornell.edu/uscode/text/17/102" rel="nofollow noreferrer">17 USC 102</a></p>
<p>17 USC 121 reads:</p>
<blockquote>
<p>it is not an infringement of copyright for an authorized entity to reproduce or to distribute in the United States copies or phonorecords of a previously published literary work ... if such copies or phonorecords are reproduced or distributed in accessible formats exclusively for use by eligible persons.</p>
</blockquote>
<p>Note that the page <a href="https://www.copyright.gov/help/faq/faq-digital.html" rel="nofollow noreferrer">&quot;Copyright and Digital Files&quot;</a> describes computer files recorded in a computer or on disk as &quot;copies&quot; as in deed does <a href="https://www.law.cornell.edu/uscode/text/17/117" rel="nofollow noreferrer">17 USC 117</a> This establishes that such files are copies, and thus consist of &quot;materiel objects&quot;.</p>
<p>The official US copyright office page on <a href="https://www.copyright.gov/help/faq/faq-fairuse.html" rel="nofollow noreferrer">&quot;Can I Use Someone Else's Work? Can Someone Else Use Mine?&quot;</a> reads:</p>
<blockquote>
<p>Whether or not a particular work is being made available under the authority of the copyright owner is a question of fact. But since any original work of authorship fixed in a tangible medium (<strong>including a computer file</strong>) is protected by federal copyright law upon creation, in the absence of clear information to the contrary, most works may be assumed to be protected by federal copyright law. (<em>emphasis added</em>)</p>
</blockquote>
<p>Copyright Office <a href="https://www.copyright.gov/circs/circ01.pdf" rel="nofollow noreferrer">Circular 1: &quot;Copyright Basics&quot;</a> reads:</p>
<blockquote>
<p>A work is “fixed” when it is captured (either by or under the authority of an author) in a sufficiently permanent medium such that the work can be perceived, reproduced, or communicated for more than a short time.</p>
</blockquote>
<p>A computer file is petty clearly &quot;sufficiently permanent&quot; for this purpose.</p>
<p>Also consider <a href="https://www.law.cornell.edu/supremecourt/text/18-956" rel="nofollow noreferrer"><em>Google LLC v. Oracle America, Inc</em> 886 F. 3d 1179</a> As <a href="https://www.mondaq.com/unitedstates/copyright/1056716/us-supreme-court-weighs-in-on-copyright-fair-use-provision-for-computer-code" rel="nofollow noreferrer">this web page</a> reports:</p>
<blockquote>
<p>In a 6-2 decision, the Supreme Court has ruled that Google's use of Oracle's software code in developing the Android operating system constituted a fair use under §107 of the Copyright Act.</p>
</blockquote>
<p>The use would not have been fair use unless the code was protected by copyright, and the code almost surely existed only in the form of computer files. Thus the US Supreme Court has treated computer files as &quot;materiel objects&quot; for purposes of copyright law. (Note also that the use was declared to be infringement unless fair use applied, which leads even more directly to the same conclusion.)</p>
