In a much-anticipated court filing, lawyers for Audible Inc. this week urged a federal court to reject a bid by seven large publishers and the Association of American Publishers to enjoin the company from including their works in the company’s planned Captions program, and also moved to dismiss the publisher's copyright case, arguing that the matter is fundamentally a contract dispute rather than a copyright matter—but, even if the court finds the copyright claims are fair game, Audible argues, Captions is protected by fair use.
“Plaintiffs have come to this Court with the wrong claim,” Audible lawyers argue in a brief support of their Motion to Dismiss. “Each Plaintiff granted Audible a license to its copyrighted works, and yet now alleges that Audible Captions infringes those licensed works. But the law is clear: by agreeing to those licenses, Plaintiffs waived their right to sue for copyright infringement as a result of licensed conduct. Thus, this Court need not reach the copyright issues presented here. If Plaintiffs object to Audible Captions, they must do so as contract counterparties claiming breach, or carry their burden to prove some relevant limitation to the scope of the licenses they granted.”
In the filings, Audible lawyers reject what they see as the plaintiff publishers’ attempts to “paint Audible and its customers as copyright pirates guilty of ‘classic, willful copyright infringement,’ contending that plaintiffs “misrepresent the relationships among the parties,” as well as how Audible Captions works, and “several core principles” of copyright law.
“Because Plaintiffs fail to plead that the license agreements contain limitations that would support their copyright claims, not only should their motion for an injunction be denied” the brief concludes, “but their Complaint—which fails to plead anything other than copyright claims—must be dismissed.”
As for the pressing matter—the publisher's motion for a preliminary injunction—Audible lawyers argue that the publishers "cannot show they will be harmed by Audible Captions, much less irreparably so." Calling the publishers' copyright claims "scare tactics," Audible argues that "the claims and predictions" in the publishers' motion are "factually unfounded, provide no basis for injunctive relief, and, indeed, fail as a matter of law." Notably, the brief states, even if the publishers were to prevail on its copyright claims, harm could be quantified, and that Audible Captions can be disabled. "Thus, it is entirely possible to 'unring the bell' once the feature is released," the brief states.
But, even if the publishers' copyright claims are allowed to proceed, the brief goes on, Audible Captions is “unequivocally transformative” and is “squarely protected” by the fair use doctrine.
“Audible Captions is a quintessential fair use,” the brief states. “After listeners purchase an audiobook—and Plaintiffs and their clients are compensated—Audible Captions can help listeners understand it by looking up unfamiliar words, accessing reference materials, or simply verifying and focusing on what they are hearing.”
Indeed, the brief portrays Captions not as infringing, but as a tool, built with free, commonly available software, that must be turned on, and can be turned off, by users. And crucially, Audible lawyers dispute the publishers’ contention that the Captions feature in any way competes with or harms the book or e-book market—rather the feature enhances the audiobook market.
“[T]he snippets of ephemeral text provided by Audible Captions do not add up to an e-book in either ‘purpose’ or ‘character.’ Unlike a separately purchased book, e-book, Immersion Reading text, or WfV Whispersync for Voice], a listener using Audible Captions cannot turn (real or virtual) pages, skip around in text, scan ahead, or access any text other than the few words she just heard, and the snippets of text disappear within seconds if the listener does not click a word or pause the audio,” the brief states. “In other words, the user cannot read a work via Audible Captions in any meaningful sense. Audible Captions does something more limited, though still important: improve a listener’s ability to understand the work she has purchased.”
The brief comes after seven plaintiff publishers filed suit in federal court last month accusing Audible of "willfully pushing a product that is unauthorized" and that "interferes and competes with established markets." Central to the publishers’ claims is that Captions represents a new market that should be licensed into—a contention that Audible lawyers dismissed. “Courts have rejected the circular logic that, because the challenged use is not being paid for, plaintiffs have ipso facto lost out on potential revenue,” the brief states.
Following the release of the brief, the AAP issued a statement saying they remain confident Audible Captions will be found to be copyright infringement. "The AAP and its member companies strongly disagree that Audible Captions is transformative under the case law of fair use," the statement said. "Audible has a responsibility to obtain permission from publishers and authors, both of whom have served the educational marketplace and general reading public for hundreds of years.
The publishers will now have an opportunity to respond to Audible’s opposition to the preliminary injunction with a 20-page brief, under an agreement struck between the parties this week.
Audible closed its brief, meanwhile, with an eye-opening parting shot. "Plaintiffs claim they are the ones who 'promote literacy, defend freedom of speech, advance scientific progress, stimulating intellectual and cultural discourse that is central to a healthy democratic society, and foster the joy of storytelling,' Audible attorneys write. "Yet, in response to Audible's efforts to support those same ideals, Plaintiffs show only sneering contempt."
This story has been updated to include the response from the AAP.