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Audible-y Copyright Infringement?


Photo by Derick Anies on Unsplash

 Audible Captions is in the news, and we just want to say  that no matter the outcome- this is one juicy case that will not only change the publishing industry, but the understanding of copyright, contract, and licensing standards and laws for some time to come!

Audible Captions is an exciting idea that, in theory, could make audiobooks far more accessible to many people with auditory processing issues, but whom, for other reasons, may not or cannot, use ebooks or physical print volumes. The idea is that much like the Spotify ‘lyrics’ feature, words appear on your device as you are hearing them when listening to audiobooks. Cool idea right?

However, the way Audible went about this has caused quite a stir before the federal court this summer, being brought before it by a conglomerate of publishing houses under the suit of copyright infringement.

The powerful claim is this, that Audible Inc. did not seek a license from publishers who control or own the rights in the copyright of the works it sought to include in its ‘Captions’ feature, and therefore ‘undermines the entire book industry’. Publishers create revenue for themselves and their authors through licensing rights, such as audio and distribution rights.

The original complaint says ‘Audible’s actions — taking copyrighted works and repurposing them for its own benefit without permission — are the kind of quintessential infringement that the Copyright Act directly forbids’. Prima facie this is clear- copyright affords protection to creators and licensors from unauthorised copying, adaptation and distribution to a new public. ‘Audible will take for itself a format of digital distribution it is not authorized to provide, devalue the market for cross-format products, and harm Publishers, authors, and the consumers who enjoy and rely on books’

“Audible’s actions — taking copyrighted works and repurposing them for its own benefit without permission — are the kind of quintessential infringement that the Copyright Act directly forbids”

During the initial hearing, Audible Captions as brought to the attention of publishers was riddled with errors, having relied on AI ‘speech-to-text’, of which the quality the seven publishing houses are known for, will be reduced, and therefore harm their reputation. The devaluation argument, brought forward by the claimant’s attorneys, stems from the fact that Amazon (the mother company of Audible) have been licensed to create and sell features such as WhisperSync, where if one owns the ebook and audiobook version of a title, can use both in sync- as in, read and listen. This feature stems however, from the consumer purchasing BOTH versions, whereas Captions, arguably, offer a similar solution for half the price.

Audible’s motion to dismiss these claims is perhaps, the most interesting factor about this case. It is three pronged, and goes a little like this:

  1. That there is no copyright infringement, and that under fair use, Audible Inc are not at fault. Under the Copyright Act, copyright has fair use exceptions to ‘promote the progress of useful arts and sciences’. (this wording in the Act is actually about granting exclusive rights of protection to the author, but the point is still made)
  2. If the courts cannot find that there is no copyright infringement, then they must see that their existing audiobook licenses contains wording vague enough to allow Audible Captions
  3. Even if they cannot find such allowances in the licenses with publishers, the court should then find by agreeing license terms with Audible, the publishers have actually ‘waived their right to sue for copyright infringement as a result of licensed conduct’ and that any claim made must be in regards to a clear breach, and under contract law, rather than anything else.

I’m no attorney, but this reminds me of a popular joke told throughout law schools across the globe:

‘The defense comes with  an argument three stages, your honour, 1. my client is not guilty of murder because he did not kill the plaintiff, but if the court finds that he did kill the plaintiff, then 2. my client had to kill the plaintiff in self-defence and if the court cannot find that my client did this in self-defense, then 3. my client is suffering from insanity, and shall therefore be relying on the insanity defense.’

Unfortunately for Audible’s attorney, the motion to dismiss has had echos from all parts of the legal and publishing industries of ‘this makes no sense’, and we’re all inclined to agree. The publishers, having done their job properly, have properly registered copyright and their ownership or control of it, and made a valid copyright claim. The brief from the publisher goes on to argue ‘A copyright owner does not need to allege that a license does not exist to state a claim for copyright infringement’. In fact, none do, they all make clear that the license between themselves and Audible for audio distribution does exist, and that it is Audible who cannot or has not provided the license for text functions or legal reasoning that suggest the wording of such license could be for anything other than audio distribution.

The publishers are awaiting an injunction for now, and Audible Captions have removed titles pertaining to the publishers from their catalogue. If I were a gambling girl, I would bet that the injunction will be granted and the only way we will hear of Audible Captions again is if they compensate publishers and authors with a valid licence. I am sure the legal teams of the publishers will be very careful to read the fine print. However, if I am wrong, and Audible have the motion dismissed- this could change our understanding of copyright licensing and fair use for time to come. I can’t wait!

To read the full argument, please see the complete transcript here.

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