Audible’s Caption Controversy

Audible, Amazon’s audiobook publishing arm, announced plans for “Audible Captions,” a fea­ture that displays the text of a book along with the narration on listener devices. Audible said the feature would be “available on hundreds of thousands of audiobooks at launch” – a decla­ration that was met with surprise and alarm by publishers who haven’t licensed the rights to publish such text to Audible. Publishing the text without permission would likely be a violation of copyright.

The Association of American Publishers filed a lawsuit on August 23, 2019 in the southern district court of New York to block the program. Publishers including Hachette, HarperCollins, Macmillan, Penguin Random House, Scholas­tic, and Simon & Schuster were named as plain­tiffs, and seek a preliminary injunction to stop the planned September 10, 2019 launch. According to the suit, “Publishers repeatedly have urged Au­dible to relent and not launch” the program, but, “Audible has refused to agree to stop and secure the permission that it needs under the law.” In ad­dition to the infringement, the publishers object to how error-prone the machine transcription is, with Audible itself admitting “that up to 6 percent of the distributed Text may contain transcription errors,” likely leading to an “unfavorable reading experi­ence.” The court agreed to an expedited briefing schedule, with a hearing set for September 5, 2019.

Audible published a response to the lawsuit:

We are surprised and disappointed by this ac­tion and any implication that we have not been speaking and working with publishers about this feature, which has not yet launched. Cap­tions was developed because we, like so many leading educators and parents, want to help kids who are not reading engage more through listening. This feature would allow such 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. We disagree with the claims that this 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.

The lawsuit follows weeks of publishers and or­ganizations expressing concerns, without receiving any concessions from Audible, which has insisted the program is neither prohibited by contracts, “nor by any applicable law.” Two of the titles mentioned in Audible’s original announcement, Becoming by Michelle Obama and A Rage in Harlem by Chester Himes, are published by Penguin Random House, which wasted no time in objecting. A spokesperson told Publishers Lunch, “We have reached out to Audible to express our strong copyright concerns with their recently announced Captions program, which is not authorized by our business terms. We have indicated that we expect them to exclude all Penguin Random House titles from the program.”

Other publishers indicated that they had never been contacted by Audible about the program, in­cluding Simon & Schuster, with a spokesperson saying, “We have informed Audible that we con­sider its Captions program to be an unauthorized and brazen infringement on the rights of authors and publishers, and a clear violation of our terms of sale. We have therefore insisted that Audible not include in Captions any titles for which Simon & Schuster holds audio or text rights.”

Audible responded, saying,

Captions is a user-directed technology that only works with audio. It does not replicate or replace the print or eBook reading experience – small amounts of machine-generated text are displayed progressively a few lines at a time, while audio is playing, and listeners cannot read at their own pace or flip through pages as in a print book or eBook. Audible Captions was designed primarily to fill an unmet need in edu­cation – it is about understanding words, their sound and meaning – and it has been validated by the endorsement of an advisory board that includes nine of the best educators in the coun­try. It will be used in beta format by 150K public school children across the country as an Audi­ble-funded test. After launch, it will be apparent that no user would ever use this as a substitute for reading a book. Given that the feature isn’t live yet, we are in discussions with content pro­viders to help address some confusion about how Audible Captions works and what listeners will experience.

Before pursuing legal action, Association of American Publishers president and CEO Maria A. Pallante released a statement of concern as well:

The Association of American Publishers finds Audible’s announcement regarding its forthcoming “Caption” feature both surprising and deeply concerning.

Audible enjoys access to valuable literary properties only because publishers and authors have entrusted these works as part of explicitly licensed audio book agreements; Audible can­not also create wholly unauthorized, text ver­sions of these audio performances unless the copyright owners agree that such adaptations are permissible. Such adaptations could serve to undermine their legitimate and separately licensed markets for books and eBooks. Noth­ing under US law permits a company that is a copyright licensee for one purpose to unilater­ally extend the scope of the agreement to other uses, particularly for the purpose of enhancing one’s products for commercial gain.

We are reviewing the matter with our mem­ber companies and considering next steps.

The Authors Guild noted that existing agree­ments “do not grant Audible the right to create text versions of audiobooks, whether delivered as a full book or in segments. Nor is there an exception to the copyright law that would permit Audible to do this.” The Guild says it will continue to investigate, “but based on what we have learned to date, the Captions program appears to be outright, willful copyright infringement.” The court will decide if it agrees.

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