Is Audible looking for the exit? In a letter to the court on Thursday, lawyers for Audible suggested a 30-day hold on the litigation over its Captions program, and a referral to a magistrate judge to oversee settlement talks during that period. But the plaintiff publishers threw cold water on that proposal, prompting federal judge Valerie Caproni to deny Audible's request.
"The Court does not refer parties to the Magistrate Judge for a settlement conference unless all participants believe such a referral would be productive," Caproni wrote in her brief decision. "Accordingly, Audible's request for a referral is denied at this time. Should the parties change their mind and come to an agreement on next steps, including the need to resolve the pending motions, they must promptly inform the Court."
The prospect of settlement talks comes after a September 25 hearing, during which Caproni appeared highly skeptical of Audible’s fair use defense. However, upon learning at the hearing that a Captions launch was not imminent and that Audible was planning to restrict the program to public domain works, at least in the beginning, Caproni questioned the need to decide on a preliminary injunction, and instead urged the parties to opt for a speedy trial, conditioned upon Audible extending its agreement not to include the publishers’ works in Captions until the publishers’ copyright claim is resolved.
In an October 3 letter, Audible attorneys told the court that the two sides have been in discussions since the hearing, but were unable to agree on a path forward.
“Thus, Audible proposes the following approach,” Audible lawyer Emily Reisbaum wrote. “Audible will agree to its current standstill, with both pending motions held in abeyance, in order to allow both parties to participate in settlement discussions before Magistrate Judge Sarah Netburn (and we ask the court to refer the matter to her for that purpose.) Should those discussions prove unsuccessful, we would then ask the court to decide the pending motions, and, if the case survives the motion to dismiss, set a discovery and trial schedule in the ordinary course.”
First announced in July, Captions is a feature that scrolls a few words of an AI-generated transcription along with a digital audiobook as it plays in the Audible app. Publishers say the program is infringing, and have moved for a preliminary injunction that would bar Audible from using the publishers' works in the program until their copyright claim is resolved. Audible has moved the court to dismiss the publishers' suit, claiming that the case is incorrectly pled.
Publishers’ attorney Dale Cendali told the court that her clients were “surprised” by Audible’s October 3 letter to the court, noting that on Monday the publishers had proposed “a detailed case management proposal” to Audible, but did not hear back until shortly before Audible filed its proposal with the court yesterday.
“Audible’s race to the Courthouse does not reflect any of the discussions between the parties or the Court’s desire to resolve this case expeditiously,” Cendali pointed out. “It, however, does make one thing clear: Audible does not agree to stipulate to the preliminary injunction. All Audible is offering is what was already ordered, not to release Distributed Text for Publishers’ works until the Motion is decided. As a result, Publishers see no reason to further delay resolution of the Motion.”
Regarding potential settlement talks, mediated by a magistrate judge, Cendali dismissed the idea.
“[Audible’s] proposal seems intended to delay a prompt resolution rather than settle the case,” wrote Cendali, in an October 3 letter. “Consequently, Publishers believe that settlement talks at this time would be a waste of the parties’ and the Court’s resources."
Cendai told the court that the parties were "fully capable of engaging in settlement discussions without compromising an earlier resolution of this case,” and that the publishers found it "curious Audible wishes to pursue settlement now after rebuffing each of the Publisher’s requests that Audible stop before filing the lawsuit, but, suffice to say, the parties specifically discussed a framework for such possible discussions that Audible rejected."
