In a pair of filings on September 20, publishers rejected Audible’s contention that the case at hand is fundamentally a contract issue, and urged the court to let the case go forward as pleaded—as a copyright dispute.

In one filing, attorneys for the plaintiff publishers say the contract argument presented in Audible’s Motion to Dismiss “makes no sense,” as the publishers have clearly established ownership of their copyrights and stated a valid copyright claim. “A copyright owner does not need to allege that a license does not exist to state a claim for copyright infringement,” the publisher brief states. “Rather, Audible has to raise the existence of a license permitting its conduct. Audible has not come forward with any such license.”

In its September 12 motion to dismiss, Audible lawyers argued that by agreeing to license terms with Audible, the publishers “waived their right to sue for copyright infringement as a result of licensed conduct,” and that infringement claims related to Audible must be made “as contract counter-parties claiming breach.”

But the publishers strongly rebutted that contention in the new filing, arguing that the existence of a license to distribute audio content in no way extends to the distribution of text.

“Publishers’ Complaint alleges no license that would permit Audible to generate Distributed Text from Publishers’ Works and provide it to the public,” the publisher complaint states. “There is nothing in the Complaint that even suggests that Audible is permitted to provide the Distributed Text. To the contrary, the Complaint repeatedly asserts that Audible’s actions in providing the Distributed Text were wholly unlicensed... In other words, Audible cannot raise the Complaint’s reference to its authorization to copy apples as a defense to the Complaint’s clearly pleaded allegations that it improperly copied oranges.”

The publishers argue that the copyright case must be allowed to proceed, noting that Audible can always raise “the affirmative defense of license, if it actually believes it has such a defense” but “should not be permitted to restrain consideration of Publishers’ copyright claims on the grounds that the Complaint was not properly pleaded.”

Notably, the publishers’ brief pertaining to Audible’s Motion to Dismiss does not focus on Audible’s fair use argument, explaining in a footnote that publishers “do not understand Audible to be seeking dismissal of Publishers’ Complaint based on fair use.” A closing note, however, requests that should the court be inclined to grant Audible’s motion to dismiss, the publishers “be permitted leave to amend their Complaint.”

'Listeners’ have paid for the right to listen,' the publishers’ brief states, 'not to read.'

Audible’s fair use defense does feature prominently in the more pressing matter at hand, however: whether Audible should be preliminarily enjoined from including the publishers’ works in its Captions feature as the copyright case proceeds. In a separate brief, the publishers argue that Audible’s fair use argument is meritless, asserting that Audible’s “wholesale” copying and “naked distribution” of the entire texts of the publishers’ works is “classic infringement” which should be enjoined.

In pressing for the injunction, the publishers reiterate their contention that Captions would cause “irreparable harm” on their businesses if their works were included, and that the purported functional educational benefits touted by Audible are at once highly questionable (as claimed in a declaration by Scholastic Professional v-p and Literacy Publisher Lois Bridges) and insufficient to tip the fair use balance.

“The public interest in protecting Publishers’ copyrights outweighs Audible’s unsupported claims that Distributed Text aids literacy,” the brief states, arguing that “Audible’s use of Publishers’ Works—particularly if it became widespread—threatens numerous original and derivative markets for the Works, and clearly devalues them by providing their text essentially for free.”

It’s worth pointing out that the fascinating copyright case shaping up here is still largely academic. At this point, there are no real world examples of infringement, as Audible has yet to launch Captions, and in recent communications has indicated that it plans to limit the program’s initial release to public domain works, distributed to a small selection of high school students.

Nevertheless, in its filings, Audible argues that Captions is “a quintessential fair use,” and portrays the feature 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 that does not offer a reading experience or compete with books, but enhances the audio experience. “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,” Audible argues.

The publishers, meanwhile, suggest that functionality is merely a red herring to divert attention away from a key point in the case. “Listeners’ have paid for the right to listen,” the publishers’ brief states, “not to read.”