Legal analysis: Audible captions leads to copyright infringement suit

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Where technology and copyright collide

By Carolyn Schurr Levin

There is nothing simple about copyright. The law is complex, with so many nuances. In this first CMR legal column, we analyze a pending copyright dispute involving newly developed technology in an effort to assist students and advisers as similar issues arise.

Audible, the Amazon.com audiobook company that bills itself as “the world’s largest seller and producer of audiobooks and other spoken-word entertainment,” introduced a new feature in July 2019 that displays the text of a book while it is read. The feature, called Audible Captions, allows listeners “to follow along with a few lines of machine-generated text as they listen to the audio performance,” according to Audible’s website. “We developed this technology,” Audible’s website states, “because we believe our culture, particularly in under-resourced environments, is at risk of losing a significant portion of the next generation of book readers. We have heard from so many teachers and educators that they want to find new ways to improve literacy rates and inspire students to pick up a book and read.”

LEGAL ANALYSIS: In this new column, we will choose a recently filed lawsuit against the media and analyze the claims being made, the arguments against those claims, and the implications for college media organizations. --Editor

Book publishing companies, however, were less than pleased with the announcement about the launch of Audible Captions. On August 23, 2019, seven publishers—Chronicle Books, Hachette Book Group, HarperCollins Publishers Macmillan Publishing Group, Penguin Random House, Scholastic, and Simon & Schuster—filed a federal copyright infringement lawsuit against Audible alleging that Audible Captions infringes the copyrights in their books. The publishers are seeking a court order to stop the launch of Audible Captions, as well as collecting an award of monetary damages for the alleged infringement

“Audible’s actions—taking copyrighted works and repurposing them for its own benefit without permission—are the kind of quintessential infringement” that the federal copyright law prohibits, the publishers state in their lawsuit, which was filed in the United States District Court for the Southern District of New York.

Audible vigorously disputes the publishers’ claims. “We disagree with the claims that [Audible Captions] violates any rights and look forward to working with publishers and members of the professional creative community to help them better understand the educational and accessibility benefits of this innovation,” Audible states on its website.

In their lawsuit, the publishers argue that their books are available in many different formats. The publishing companies “invest substantial additional time, money, professional expertise and resources in creating high-quality eBooks and audiobooks to ensure that the reader and listener reads or hears the content of the work as intended,” the lawsuit states. While Audible has obtained permission to distribute the publishers’ audiobooks, Audible did not seek permission, nor does it plan to compensate the publishers or their authors for the new feature, Audible Captions, the publishers argue.

“Audible did not seek a license for the creation and provision of the transcriptions provided to consumers [and] does not plan to compensate Publishers or their authors for this feature, nor will it allow them to decide what titles will be made available,” the lawsuit alleges.

Audible counters that its intended goal for Audible Captions are laudable and that there is no infringement. “This feature would allow . . .listeners to follow along with a few lines of machine-generated text as they listen to the audio performance. It is not and was never intended to be a book.”

Until the issues are decided by the court, Audible Captions will not be available. The parties agreed on August 28 that Audible will not enable its Captions feature for the publishers’ books until the court rules on the publishers’ August 23 motion for an injunction (a court order to stop Audible Captions). So, for the time being, Audible Captions will not be available – at least for the books owned by the publishing companies involved in this lawsuit.

In the most recent court papers filed on September 12, Audible has asked for a dismissal of the case in its entirety, arguing that the service does not exceed the scope of the license that Audible has from the publishers to create the audiobooks, and that even if it does, “Audible Captions is a quintessential fair use” with important public benefits. The publishers’ reply is due on September 20, and a hearing in the case is scheduled for September 25 before United States District Court Judge Valerie Caproni.

The widely divergent positions of the publishing companies and Audible will ultimately be decided by a federal court. So, where does this leave those of us who create our own content and also use others’ content every day, sometimes in technologically new ways? What lesson does this case have for us?

First, technology changes rapidly.

First, technology changes rapidly. In the Audible case, as reliance on written words disappears, audio innovations progress. Whether or not that will ultimately be held to constitute infringement or fair use, it is extremely important to think through the potential copyright issues posed by technological advances, and to apply copyright basics, rights and defenses to your analysis. Copyright training and education for student journalists is critical. Students must understand and be aware of the importance of respecting copyrights.

Whether or not that will ultimately be held to constitute infringement or fair use, it is extremely important to think through the potential copyright issues posed by technological advances, and to apply copyright basics, rights and defenses to your analysis. Copyright training and education for student journalists is critical. Students must understand and be aware of the importance of respecting copyrights.

Second, be cautious when using work created by someone else. If you are not sure whether your use of others’ copyrighted materials will fall within the scope of a permission, whether it will exceed that permission, or whether it may constitute fair use, speak with editors and advisers. When in doubt, seek permission.

Third, seek legal guidance, either through the Student Press Law Center, your local press association, or other available legal resources. Check out the Student Press Law Center’s Student Guide to Copyright Law. Innovations in technology raise novel copyright questions. New cases are constantly being filed and decided. Staying aware of the changes will protect you, your student media organization and your content.


Carolyn Levin

Carolyn Schurr Levin, a media and First Amendment attorney, is Of Counsel at the media law firm of Miller Korzenik Sommers Rayman LLP. She was the Vice President and General Counsel of Newsday, Vice President and General Counsel of Ziff Davis Media, and Media Law Adviser for the School of Journalism at Stony Brook University. She has taught media law at Baruch College, Stony Brook University, Long Island University, and Pace University. From 2010-2019, she was the faculty adviser for the Pioneer, the student newspaper at Long Island University, during which time the Pioneer won 28 awards.

 

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