If the decision to issue a preliminary injunction against Audible’s “Captions” program comes down to fair use, Audible may be in trouble.
Over the course of a 90-minute hearing on Wednesday, federal judge Valerie Caproni appeared thoroughly unmoved by Audible’s defense of its Captions program, and highly skeptical that Audible’s plan to scroll snippets of computer generated text alongside audiobooks in its app should be called anything other than what it is: reading.
Opening the day’s arguments, the plaintiff publishers’ attorney Dale Cendali told the court that Audible’s Captions program was “quintessential” copyright infringement, and was quickly engaged by Caproni, who questioned whether the “clunky” experience of Captions really competed with reading a book. Cendali, well prepared for the question, responded that Captions didn’t need to be “a substitute” for a book for it to be harmful. Captions “provides a reading experience,” Cendali stressed, “saying it is something other than that just doesn't make sense.”
Cendali hit all the major points in the publishers’ complaint, finding a mostly receptive audience in Caproni. Captions is not transformative, she argued, and it is commercial in nature. Despite its “public benefit” argument, Audible is in fact seizing what should be a negotiated right to gain a competitive advantage over its competitors, Cendali stressed. If allowed to go forward, Captions would harm the market for books, e-books, and immersion reading; weaken rightsholders’ ability to license works in other markets; “devalue and cheapen” those rights by offering the feature as a free add-on; and the poor quality of the Captions program would cause reputational harm to authors and publishers who might be associated with a shoddy program, their works wrested from their control without permission.
The last point seemed to especially hit its mark with Caproni as an example of the kind irreparable harm—distinct from the market harm also in play—required to win a preliminary injunction. “As much as there might be a moral rights issue [in U.S. copyright law] this is a moral rights issue,” Cendali argued. “The damage this does would be impossible to measure. Money damages cannot make up for this. It affects the entire industry. This is a sea change, what they are trying to do. That's why you have all these publishers, authors, and the agents here together. That shows you how dramatic it is.”
When it was Audible's turn, attorney Emily Reisbaum never really had a chance. “First, let me say the product is good,” Reisbaum began, attempting to explain that the publishers’ portrayal of the product and its error rate was not accurate. Captions is designed to work alongside an audiobook, not “divorced” from it, she argued, and it does not provide a reading experience.
“What do you mean it’s not a reading experience?” Caproni interjected. “It’s words.”
What followed was a strained back and forth about what constitutes reading a book, with Reisbaum suggesting that seeing words as you listen to them is, well, something else.
“The fact that you can see the words doesn't make it a book,” Reisbaum insisted at one point, trying to convince the judge that Captions is an enhanced audio experience, not a book experience—users couldn’t flip forward or back at their own pace, for example, nor could the text be stored, or shared, or skimmed. The experience was designed to increase comprehension of the “words” that Audible customers have paid for. Caproni didn’t appear to be buying it. “They paid to have the words read to them,” she pointed out.
While the publishers appeared to grab the upper hand on the fair use question, what happens next remains uncertain. Caproni had initially brushed aside Audible’s argument that the case was fundamentally a breach of contract case, and that the copyright case should be dismissed. But toward the end of the hearing, Audible lawyers returned to the issue, and seemed to finally get the Judge’s attention.
In terms of a motion for a preliminary injunction, Reisbaum argued that the publishers’ had “zero likelihood” of succeeding on the merits of their copyright case, because the case was improperly pled. “This is a threshold issue,” Reisbaum insisted.
Asked to respond, Cendali reiterated that none of the publishers’ agreements granted Audible the right to generate and distribute text.
But that’s a conclusion not supported by evidence before the court, Reisbaum insisted. The parties have acknowledged that they have valid license agreements. Captions is a program to be used with that licensed content. Without seeing those agreements, and where Audible is alleged to have breached them, how does the court know that speech-to-text is not covered under those licenses?
But perhaps the most surprising moment came when Caproni realized that Captions had not launched, and that a launch was not imminent. Why was she being asked to grant a preliminary injunction? She suggested the parties hold in place (which means not including the publishers works in any planned launch) and simply go to trial. She offered an expedited discovery, and a trial date by the end of the year.
The publishers strongly protested. "We beg you to rule on the motion," Cendali pleaded with the judge, saying that the uncertainty surrounding the Audible program was already impacting the publishers, harming their ability to do other deals. Caproni replied that it was only a preliminary injunction at stake, that there would still be uncertainty even if she granted it. Why not get right to trial and resolve the issue?
"They can't just do a head fake," Cendali said referring to Audible's still unannounced launch date, adding that not ruling on the motion 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. Caproni reserved ruling for a later date.
Nevertheless, the publishers left court feeling good about their chances. "We had a good day in court and remain extremely confident in our arguments," said AAP's John McKay in a statement. "We look forward to the court’s ruling, and continue to appreciate the strong support we have received from the creative community, including the Association of Authors Representatives, the Authors Guild and the Independent Book Publishers Association."
Representatives for Audible did not return request for comment by Thursday morning.