Lawyers for Audible are doubling down on their claim that a lawsuit filed by seven publishers over Audible’s forthcoming Captions program is fundamentally a contract dispute, and are insisting in a new filing that the publishers’ copyright infringement claims must be dismissed.

“Audible and each of the Plaintiffs are parties to license agreements for Plaintiffs’ audiobooks. Plaintiffs admit that these license agreements exist. The agreements are directly at issue here, because this dispute arises from Audible’s plan to introduce a new feature for those licensed audiobooks: Audible Captions, which uses speech-to-text transcription to generate audiobook captions from and for the licensed audiobooks to enhance listener comprehension,” the Audible brief states. “Plaintiffs do not allege that Audible Captions breaches their license agreements, however. Instead, they attempt to allege it infringes their copyrights. But the law is clear: before Plaintiffs can state this copyright claim, they must first plead how and why generating speech-to-text captions for the licensed audiobooks lies outside the scope of their audiobook licenses.”

In a filing last week, lawyers for the plaintiff publishers said Audible’s contract argument “makes no sense,” as “no license exists” that that would permit Audible to generate and display text to the public. “A copyright owner does not need to allege that a license does not exist to state a claim for copyright infringement,” the publisher brief claims. “Rather, Audible has to raise the existence of a license permitting its conduct. Audible has not come forward with any such license."

But license agreements do exist. And while those agreements surely do not include a right to generate and distribute text, that is beside the point at this stage, Audible lawyers suggest, arguing that the failure to state a claim based on those agreements is “a defect" that warrants dismissal of the copyright suit.

"Plaintiffs argue, for example, that 'the audiobook resale agreements, as alleged, do not relate to Audible’s conduct in providing Audible Captions' and that 'Publishers’ existing audiobook resale agreements do not authorize Audible to create and distribute Audible Captions.' These are simply conclusory assertions about the scope of these contracts," Audible attorneys argue. "Because Plaintiffs chose not to plead the specific terms of their various audiobook licenses, the Court cannot 'understand' or evaluate Plaintiffs’ assertion that Audible Captions—a speech-to-text generated feature generated from the licensed audiobooks—exceeds the scope of those audiobook licenses."

In response to the publishers' argument that Audible could bring forth the license agreements as an affirmative defense, Audible lawyers say that burden is misplaced.

"It is not Audible’s burden to cure Plaintiffs’ pleading infirmities by identifying the contract terms that allegedly limit the scope of its license rights,” the brief states. “To state a valid copyright claim, Plaintiffs were required to so plead. They did not, likely because of the politics and complexities of pleading contract claims on behalf of seven Plaintiffs, each bound by different license agreements with different substantive terms and confidentiality rules, all of which would undermine claims of irreparable harm (and likely diversity jurisdiction) against Audible. But Plaintiffs’ strategic choice cannot overcome their pleading failure, and the difficulty or inconvenience of those obligations is for them to address. The Complaint should be dismissed.”

The latest filing comes as the parties are due in court today for a hearing on the publishers’ motion for a preliminary injunction, which, if granted, would bar Audible from including works from the plaintiff publishers in the captions program while the copyright infringement case is adjudicated.