September 30, 2019
“The fact that you can see the words doesn’t make it a book,” argues Audible’s lawyer
by Athena Bryan
The saga of Audible’s Captions program continues! You can read up on our coverage of the debacle here and here.
Basically, the Big Five alongside Chronicle Books and Scholastic have joined forces in a lawsuit against Amazon’s audio imprint, Audible, citing that their new program, which runs text captions of audiobooks as readers listen, constitutes a copyright infringement to the publishers.
Publishers Weekly reports that the first hearing was held on Wednesday. Federal judge Valerie Caproni heard from Audible and the publishers’ attorneys over the course of a 90-minute session.
As we’ve covered previously, Amazon’s defense comes down to the fact that the captions only reveal themselves as the audiobook proceeds, and not stored in a way that readers can revisit them.
This was dispensed with quickly by the publishers’ lawyer, who argued that the issue was not whether or not the captions were a full substitute for a book, but that they provided a “reading experience.” Which sort of throws a wrench in all of the snarky jokes about “audiobook captions” being a fun and circular way of describing a “book” that we had prepared for this blog post, but let’s just keep going.
Andrew Albanese reports for PW that Judge Caproni was “mostly receptive” to the publishers’ case, which were not limited to the semantics about how one “reads” and “book,” but also included the arguments that Amazon was “seizing what should be a negotiated right to gain a competitive advantage over its competitors” and that the Captions program 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 finally “cause reputational harm to authors and publishers” with their shoddy transcriptions.
We really thought that last one was just a potshot that got tacked on for emphasis, but apparently Judge Caproni found it especially salient, particularly on the issue of granting a preliminary injunction (that is making Audible stop the program immediately).
Audible’s lawyers countered by noting “the product is good,” which only increases our suspicion that that last point was a personal dig that Amazon didn’t appreciate.
Audible’s lawyer then started getting into the weeds about what constituted “reading a book.” As you can probably tell, I particularly love covering that side of the case (“’What do you mean it’s not a reading experience?’ Caproni interjected. ‘It’s words.’”—no, I didn’t make that up.) But it seems that right now, the argument has come down to a decidedly less fun and meta question of if this should be a copyright or breach of contract case.
Basically, Audible is arguing that they have valid licenses with the relevant publishers, and those licenses are not being evaluated before the court right now, because it is being tried as a copyright case. Without evaluating those, this case is being pled and adjudicated improperly.
Like all things legal, this is a sneaky and devious argument that, at the end of the day, is also pretty boring, but it got some play from Judge Caproni, who was also thrown for a loop when she realized that not only has the program not yet launched, but it doesn’t even have an official launch date.
Why file a preliminary injunction and order someone to immediately cease doing something that they haven’t done yet? The publishers’ lawyer argued that if no preliminary injunction was on the table, this would translate to a “get of jail free card” for Amazon.
“I don’t have any get out of jail free cards. What I have is a chance card,” said Judge Caproni, who, frankly, seems pretty fun.
Caproni will deliver her ruling at a later date.
Athena Bryan is an editor at Melville House.