In a filing this week, attorneys for Audible and the seven plaintiff publishers for the first time publicly shared the final terms of their settlement agreement to end the litigation over Audible's Captions program. The unsealed agreement confirmed that Audible has agreed to pay an undisclosed sum to each of the plaintiff publishers and the Association of American Publishers as part of closing the litigation, which was previously known.
After twice being rebuffed by judge Valerie Caproni, who insisted on more public transparency regarding the settlement's final terms, the parties ultimately chose to redact only the amounts to be paid to the seven plaintiff publishers and the AAP by Audible (redactions that were expressly approved by Caproni) while making the rest of the terms open to the public.
The release of the settlement comes after Caproni on February 26 gave the parties something of an ultimatum: make the terms more transparent or move on without the court retaining jurisdiction over parts of the deal. The public release of the settlement and other related documents now paves now the way for Caproni to sign off on an agreed upon final injunction restraining Audible from including AAP member works in Captions without permission, and to retain jurisdiction over the related settlement agreement, which the parties had initially sought to have sealed.
Now that its public, it's still not clear why the parties sought to keep the settlement terms private in the first place, other than the fact that NDAs and confidentiality agreements have become the default for Audible's parent company, Amazon. Beyond the revelation of the settlement containing payments from Audible, the settlement is brief, and its 18 terms are simple, standard, and straightforward.
A February 6 letter, initially filed under seal but also made public this week, sheds a little light on the parties unsuccessful bid to persuade Caproni to seal the agreement.
"The parties make this request to seal the Agreement because the parties negotiated and entered into the Agreement based upon the expectation it would remain confidential, [and] it contains confidential settlement terms between Audible and the AAP, a non-party," the letter states, adding that the release of the proposed final injunction was sufficient for the public to understand the case and the major beats of its resolution.
In a subsequent February 21st letter (also made public this week) the parties did manage to convince the judge to keep the settlement payment amounts confidential, arguing that disclosure of the payment amounts "may create the impression that the settlement amount reflects the monetary values of the claims, which is not true."
Perhaps the one minor surprise in the settlement agreement: paragraph 11, which Caproni had specifically called out in her February 26 order as being needlessly redacted, and which essentially gags the parties, limiting both sides to giving the public only the short statement that was shared by the AAP on February 7.
The release of settlement and related documents should mark the last act for case. First filed in August of 2019 by seven publishers (including all of the Big Five, plus Scholastic and Chronicle Books), the initial suit claimed that Audible’s proposed Captions program, which scrolls a few words of an AI-generated transcription alongside an audiobook’s narration in the Audible app, amounted to blatant copyright infringement, by turning licensed audio into unlicensed text.
In response, Audible officials argued that the Captions program was designed to enhance the audio experience, and was protected by fair use. At a September 27 hearing, however, Caproni appeared highly skeptical of Audible's fair use defense.
Meanwhile, the Captions program never launched, and in fact never even had a public launch date. Audible officials have also confirmed to PW that there are no plans to expand to the program beyond its current pilot, which is limited to public domain works for a select group of high school students. And, in a message to IBPA executive director Angela Bole, an Audible attorney last week reiterated that if the Captions program were to expand, Audible would clear permission for all works under copyright, not just AAP members' works, before including them in the program.