After a 90-minute hearing on September 25, a federal judge is considering whether to issue a preliminary injunction barring Audible, the Amazon-owned seller and producer of digital audiobooks, from including the works of seven publishers in its controversial Captions program while a copyright infringement lawsuit over the program is litigated. And if the court’s decision comes down to the merits of Audible’s fair use defense, the plaintiffs (which include all of the Big Five plus Scholastic and Chronicle Books) have reason to feel good about their chances.
Opening the arguments, Dale Cendali, the publishers’ attorney, said that Captions—a feature that scrolls a few words of an AI-generated transcription alongside a digital audiobook as it plays—represents a “quintessential” case of copyright infringement. Cendali told judge Valerie Caproni that Audible’s “public benefit” justification for the program is a ruse. In fact, she argues, the company is seizing what should be a negotiated right (the copying and display of text) to gain an advantage over its competitors. If allowed to go forward, Captions would harm the publishers’ market for their books, weaken their ability to license works in other markets, and “devalue and cheapen” their rights. In addition, the poor quality of the AI-generated transcriptions would cause “irreparable” and “incalculable” harm to rights holders who might be associated with a shoddy product, when in fact their works were wrested from their control without permission.
Caproni put Audible attorney Emily Reisbaum on the defensive almost immediately, appearing unreceptive to Audible’s fair use argument and skeptical that viewing scrolling snippets of a transcript alongside an audiobook could be called anything other than what it is: reading. “The fact that you can see the words doesn’t make it a book,” Reisbaum insisted, portraying Captions as an enhanced audio experience. The captions are synced to the narration, she noted, and users can’t flip forward or backward; the text can’t be stored, shared, or skimmed. Captions works to increase comprehension of the “words” that Audible customers have paid for, Reisbaum argued.
Caproni, however, wasn’t buying it. “They paid to have the words read to them,” she pointed out.
But though the publishers may have the upper hand on the fair use question, what happens next remains uncertain. Audible attorneys claim that because the parties have valid license agreements, the law requires the publishers to first claim breach of contract before they can state a copyright claim. At the hearing, Caproni initially brushed that argument aside to focus on the fair use question. But the claim finally appeared to get her attention after Reisbaum argued that the preliminary injunction should be denied because the publishers have “zero likelihood” of succeeding on the merits of their copyright suit, because the case is improperly pled, and must be dismissed. “This is a threshold issue,” Reisbaum insisted.
The hearing’s most surprising moment came when Caproni learned that a Captions launch was not imminent, as she had apparently believed. Rather than rule on a preliminary injunction, she urged the parties to extend a current stipulation—under which Audible has agreed not to include the plaintiff publishers’ works in its launch—and go right to trial. She offered an expedited discovery schedule and a trial date by the end of the year.
The publishers, however, strongly resisted that idea, claiming that the uncertainty surrounding Captions was already impacting them. “They can’t just do a head fake,” Cendali said, referring to Audible’s still-unannounced launch date, adding that not ruling on the preliminary injunction would give Audible “a get out of jail free [card].”
“It’s not a get out of jail free card,” Caproni responded. “I don’t have any get out of jail free cards. What I have is a chance card,” she said, pointing out that the publishers could possibly lose the motion. The judge declined to rule from the bench; a decision is expected in the coming days.
