Late last month, a group of publishers filed a complaint against Audible in the Southern District of New York asking the court to enjoin the audiobook distributor’s launch of a new audio-to-text transcription service. Although Audible has yet to file a response, a statement from the company—a subsidiary of Amazon since 2008—hints at a fair use defense based on the service’s supposed educational purpose. Unfortunately for Audible, its unauthorized reproduction, distribution, adaptation, and display of the publishers’ copyright-protected works is unlikely to survive a sound fair use analysis.
New Captioning Feature Infringes Publishers’ Rights
Audible is the world’s largest distributor of digital audiobooks and “spoken-word entertainment,” making available to its subscribers hundreds of thousands of audio programs based on works licensed from publishers, broadcasters, entertainers, individual authors, and other copyright owners. For subscribers who want a cross-format experience where they can simultaneously read and listen to the text, Audible already offers a feature called Immersion Reading. Touted as an educational tool that can help with reading comprehension, Immersion Reading is made possible by Audible securing licenses for both the audio recording and text of the work—and subscribers are required to purchase both an audiobook and a Kindle edition ebook.
In July of 2019, Audible announced it would be adding an “Audible Captions” feature to its mobile app. The service utilizes Amazon’s transcription technology to provide Audible subscribers with text for a select number of works in Audible’s audio program catalog. When listening to a predetermined “caption-ready” work, a subscriber would have the ability to activate the transcription technology, which then generates and distributes text to the subscriber’s device in a matter of milliseconds while the audio continues to play.
As the publishers’ complaint explains, the Audible Captions service converts the publishers’ works into unauthorized and often error-ridden “new” digital books and then distributes them to its customers without permission. Unlike its Immersion Reading service, Audible has not secured a license to copy, repurpose, distribute, or display this text and has no intention of compensating publishers for this cross-format use that would compete directly with and devalue existing physical books and ebooks. Accordingly, the publishers’ complaint alleges direct, contributory, and vicarious infringement and asks the court to enjoin Audible from reproducing, adapting, distributing, or displaying the publishers’ works.
Fair Use Defense Falls Flat
While Audible’s response will likely include a variety of defenses (for an in-depth look into what Audible might argue on the merits of the publishers’ prima facie infringement case, see Devlin Hartline’s recent post), public statements by the company have focused on the purported educational purpose of the captioning service, setting the stage for a fair use affirmative defense. Despite lofty claims of the educational objectives of its service, Audible Captions would clearly serve entertainment purposes as well, profiting Audible while undermining the legitimate and existing market for ebooks and other cross-platform services. A closer look at the four fair use factors reveals Audible’s tenuous position.
The first factor—and the factor that is most relevant to Audible’s statements on educational intentions—involves determining the purpose of the unauthorized use. Section 107 of the Copyright Act provides a non-exclusive list of a few traditional uses—news reporting, comment, criticism, teaching, research, and scholarship—that will usually tip the scales in favor of the alleged infringer. However, the language is clear that determining “whether such use is of a commercial nature or is for nonprofit educational purposes” is integral to a proper factor-one analysis.
In its press release response to the publishers’ complaint, Audible describes its captioning service as a “free initiative” and a “free, new technology.” But it’s critical to understand—especially in the age of pervasive and organized digital infringement—that offering something to a customer for free that may have an educational function does not mean the activity is nonprofit. Indeed, the online platforms and services we use free of charge on a daily basis distribute massive amounts of content that could be deemed educational, all the while raking in profits through ad revenue and data collection. While Audible’s business model is not the same as the social media and search engine giants that rule cyberspace, it is a commercial business that makes money from the sale of audiobooks and subscriptions, and it’s attempting to justify infringement with a familiar fair use refrain.
If Audible Captions is allowed to launch, Audible would no longer have to secure cross-format licenses for its existing Immersion Reading service. It would essentially replace its own product—more on this later—with a version designed to allow it to skirt licensing requirements and profit at the expense of publishers and other copyright owners. Providing an audio-to-text feature without having to compensate copyright owners would establish a clear commercial advantage for Audible, and this type of misappropriation is not what fair use is meant to protect.
It’s also important to note that, at a time when courts are citing transformative fair use to excuse more and more instances of misappropriation, Audible Captions does not transform the underlying work and serves no transformative purpose. Audible is reproducing the text of a literary work for the purpose of reading—whether for education or for entertainment—and that is the exact purpose of the underlying works of authorship. As the Second Circuit stated in Authors Guild v. Hathitrust, “a transformative work is one that serves a new and different function from the original work and is not a substitute for it.” There’s nothing new or different about Audible Caption’s output.
The second factor asks whether the underlying work is a fact-heavy informational work or a work of creative expression and entertainment, giving more fair use leniency to the former since there is a greater need to disseminate factual works. In the case of Audible Captions, most (if not all) of the books Audible lists in its promotional materials are literary works of fiction. Despite a few older titles that have fallen into the public domain, most of the books whose text would be made available through Audible Captions are copyright-protected works of creative expression. This factor weighs clearly against a fair use determination.
Like the second factor in this case, this consideration is not complex and weighs quite clearly against a fair use finding. Audible Captions reproduces the entire text of the underlying work. While it may only display a certain amount of text on the screen of a device at a time, subscribers have the ability to pause, rewind, and otherwise jump to any part of the works which will then be transcribed and delivered to their device.
Some early commentators on the Audible Captions technology have used the word “snippet” to describe what subscribers are able to access. This is probably an attempt to liken the service to the Google Books project, which displayed limited amounts of text to a user and was found to be fair use. But Google Books never allowed users to read a work in its entirety, which is exactly what Audible’s service does.
Notwithstanding arguments about the educational and altruistic purpose of its service, Audible cannot survive a sensible analysis of the fourth factor for one very simple reason: their own Immersion Reading service proves that a legitimate market for cross-format use already exists and will be harmed by a free alternative. As mentioned earlier, Immersion Reading depends on Audible licensing both the audiobook and text from publishers, and the launch of Audible Captions represents a way for the company to provide a similar—yet poorer quality—product to its costumer without taking a license.
In the seminal fair use case Sony v. Universal, the Supreme Court discusses the fourth factor and asserts that in order for a noncommercial use to be disqualified as fair, there must be a showing that the use would be harmful and adversely affect the potential market for the copyrighted work. Justice Stevens explains:
Actual present harm need not be shown; such a requirement would leave the copyright holder with no defense against predictable damage. Nor is it necessary to show with certainty that future harm will result. What is necessary is a showing by a preponderance of the evidence that some meaningful likelihood of future harm exists.
And so even in the unlikely event that a court were to find Audible’s service to be a noncommercial use, an existing market for the publishers’ works and the licenses already entered into for the Immersion Reading service surely satisfy the test for future harm.
Furthermore, ebooks and other cross-format offerings are readily available from authors and publishers, and massive amounts of research, time, and money go into creating the best user experience. Not only would Audible Captions strip copyright owners and creators of deserved revenue, but it would deprive them of the ability to control the look and feel of their works in the digital word. Audible Captions would undermine this already vibrant digital book market by offering an inferior substitute outside of the creative control of those who actually care about its presentation and consumption.
With a readily available substitute—even an inferior one—legitimate ebooks and other cross-format services will be devalued and fewer resources will be reinvested in their development. Publishers will lose, authors will lose, and perhaps most importantly, consumers and the public will lose if this market is compromised.
Despite talk of “a mission that transcends financial success,” it is crucial to recognize that Audible (and ultimately Amazon) is the only one that will benefit from the introduction of the Audible Captions service. If serving those in need of literacy tools was the true objective, more attention should be paid to developing technology that doesn’t generate erroneous and confusing text. At a time when the boundaries of fair use seem to be spreading in every direction, the unauthorized for-profit appropriation of entire works of creative expression cannot be part of the expansion.