Category: Lit/Pub

In Suit With Publishers, Audible’s Defenses Raise Questions

Last Monday, the world’s largest distributor of audiobooks, Audible, had intended to launch a new service called Caption, a feature that uses voice-to-text transcription technology to display the text of an audiobook on a user’s screen in synch with the narration.  In late August, seven major publishers* filed suit against Audible, alleging that the unlicensed Caption feature amounts to copyright infringement of the underlying literary works.  The Publishers requested a preliminary injunction to prevent Audible from launching Caption pending further proceedings.  

According to Audible, the customer who wants to use Caption would request a transcription of the audiobook, which is then made available about thirty minutes after the request.  The customer is then able to read the book in caption form (no more than 15-20 words at a time) while listening to the narration, and he can also tap on selected words to link to dictionary or Wikipedia references.  The captions generated are imperfect (94% accurate), not unlike the syntactical or spelling flaws one sees in closed captioning on television.  

Audible states that it intends to store a requested transcript for a period of 90 days on its servers, and if no other requests for the same transcript are made in that timeframe, the file will be deleted.  All this transcribing, deleting, and re-transcribing looks a lot like a wasted effort designed primarily to circumvent a claim of direct copyright infringement, but perhaps more on that detail in a future post.  

For now, if Caption sounds generally like a useful “enhancement” to the audiobook experience, this is more or less the perception Audible is counting on in its response to the lawsuit filed on September 12.  The company’s brief states that Caption “was created to encourage deeper and better understanding of audiobooks for users who have chosen to have an audio-first experience.”  More particularly, Audible places considerable emphasis on  “struggling readers;” and although the potential educational value of Caption is not entirely dismissible, Audible has no intention of restricting its roll-out to students, or any identifiable “struggling” class of readers.  It hopes to offer Caption with nearly every book in its library, except those works the transcription software would be unable to render with 90+% accuracy.  Finnegan’s Wake?

Because Audible is a subsidiary of Amazon, and Amazon is one of the world’s most predatory companies on Earth, the courts, book authors, and the public should take a jaundiced—if not outright skeptical—view of Audible’s implication that its primary motive is to improve reading and literacy.  That ambition may be central to Audible’s founding, but Papa Amazon has a rather dismal track record for supporting the interests or rights of any individuals in its relentless pursuit of global distribution dominance.  

The Lawsuit

Simply put, the Publishers’ make clear that they licensed their audiobooks to Audible for distribution only and, therefore, the Caption feature amounts to an unlicensed, distributed-text version of a book.  Not only do the Publishers predict Caption may become a substitute for an eBook, they further note that Caption may quickly displace existing, legal technologies like Immersion Reading and Whispersynch, both of which enable users to link eBooks to audiobooks so that the words in the former are highlighted for reading along with the narration in the latter. 

In its defense brief, Audible responds that the Publishers exaggerate the potential harm of Caption, which Audible claims is too limited in both form and function to be perceived by users as a viable substitute for any kind of book-reading experience.  Audible also asserts that, at most, the Publishers have a breach-of-contract claim that does not implicate copyright law.  But just in case the court disagrees with that argument, Audible asserts that Caption is a “quintessential fair use,” a claim that rests primarily on the implication that Caption is “transformative” in its ability to help reverse downward trends in American reading.

Breach-of-Contract Defense Misrepresents Copyright Law

“Each Plaintiff granted Audible a license to its copyrighted works, and yet now alleges that Audible Captions infringes those licensed works. But the law is clear: by agreeing to those licenses, Plaintiffs waived their right to sue for copyright infringement as a result of licensed conduct. Thus, this Court need not reach the copyright issues presented here.“

Notice how words to the effect of “to distribute plaintiff’s sound recordings” are missing from that first sentence?  Audible is probably not being careless in this statement so much as it is being a bit too clever by half—using language that is too broad to accurately describe the nature of its agreement with the Publishers. As stated, Audible licensed the right to distribute sound recordings belonging to the Publishers and nothing more.  Consequently, its claim that the Publishers’ only remedy is to be found in contract law hinges on a misreading of copyright practice.

Copyright is not a single right, but a “bundle of rights,” which the author/owner may exploit or not as she chooses under a variety of license agreements.  For instance, the author may choose to license the translation of her novel to a specific publisher she trusts; or she may separately refuse to allow sequels to a story she feels should not be serialized.  These are two distinct examples of licensing options, both protected by the same statutory right to “prepare derivative works.”

In Audible’s claim, it seems that by omission and obfuscation, they hope to convince the court, at this preliminary stage, that their license to distribute sound recordings extends to a right to transcribe those recordings into captions simply because the contracts do not specifically prohibit this conduct.  This unusual claim reads to me like a strategy to get the court to deny the Publishers’ request for a preliminary injunction, which the court would certainly do, if it agreed that the complaint is limited to a contract dispute.  This would then allow Audible to enjoy the PR benefits of launching and promoting Caption while, presumably, negotiating with the Publishers in the matter.  But it is frankly hard to imagine how the court will find this argument tenable, let alone persuasive.

Defendant asks the court to reject out of hand the plaintiff’s assertion that the Caption feature constitutes unlicensed reproduction, display, and distribution of a book’s text—three rights enumerated in the copyright statute.  So, unless the court can find a rationale that Caption does not cause reproduction, display, and distribution of these works, it seems unlikely it will concur with Audible’s view that their conduct does not implicate a copyright complaint that warrants further proceeding.  

While it is possible to breach a license agreement in a manner that does not result in copyright infringement, such an interpretation in Audible would seem anathema to the way licensing usually works.  When a contract is written to grant a limited license, the copyright owner does not need to add a clause itemizing all other possible uses of the underlying work as being specifically prohibited.  More typically, the contract will clearly describe what is being granted followed by a concluding statement to the effect that “all other rights are reserved.”  

On that subject, the Caption feature demonstrates the fact that technological innovations can yield potential uses of copyrighted works that will not be anticipated at the time a contract is executed.  Despite this, the author does not abandon his right a priori to license a potential use that has not yet been invented or introduced to the market; and his rights cannot be abrogated wholesale in the name of “innovation.”  

This is one reason authors should hope the court proceeds with tremendous caution in this case—if not in response to what Caption appears to be at present, then with an awareness of what Audible/Amazon could have in store in the near future.  With that in mind, it is worth examining the underpinning of Audible’s fair use defense—namely that Caption can be a valuable tool for “struggling readers.”   

Is Caption Fair Use?

Contrary to the “not copyright” defense, the court could find Audible’s fair use claim somewhat more persuasive insofar as Caption does appear to share certain qualities with Google Books—at least in its present form.  The fair use claim rests principally on the grounds that Caption is “transformative” (under the first factor analysis) as an educational enhancement to audiobook listening; and that it is not a market substitute (under the fourth factor analysis) for either electronic or printed books.

Kevin Madigan at CPIP writes that Caption is not at all transformative because there is nothing particularly innovative about “turning” a book into readable text.  “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,” he writes. This point is beyond dispute.  

Nevertheless, the court may be somewhat persuaded by a comparison to Google Books, which was held to be both transformative and non-substitutive in a finding this same court called “pushing the boundaries of fair use.”  There are reasons to find that Caption crosses those boundaries.  

Fair Use Factor One – Can Caption “Transform” Reading?

By alluding in its brief to broad trends in American reading habits, Audible seems to imply that Caption is an antidote to some rather dismaying data.  For instance, the brief notes, “36% of 8thgraders are reading at a ‘proficient’  or ‘advanced’ level while 24% are below ‘basic’ level …” Further, Audible observes, “One third of teens reported not reading any books for pleasure in 2016; yet they reported spending on average four to six hours per day online, texting, and on social media.”   

These statistics are sobering to be sure; and as the parent of a high-schooler and middle-schooler trying to encourage his kids to enjoy reading despite all those electronic distractions, I can relate. But with that said, it is hardly conclusive that more technological gadgets are a solution to the problem—a problem that, according to Audible’s own citation, is partly fostered by the omnipresence of tech toys in the first place.  So, it is conceivable that Audible is overstating Caption’s general value in order to seem a bit more “transformative” than it is.

It is certainly plausible that readers who struggle—either because of physical barriers, cultural-economic barriers, or plain bad habits—could achieve reading comprehension benefits from using Caption. But this possibility, for which there is not enough data, does not inherently support Audible’s “transformative” argument as a rationale to make nearly every book in its library available in Caption form to every customer worldwide.  That is a lot of market to cede to one company without license.

Morevoer, Audible’s implication that Caption might reverse reading trends at scale actually supports the Publishers’ position that the feature is not a “transformative” use so much as it is potentially a new way of reading.  If this became true, it would only underscore the fact that authors and publishers have a vested interest in that future; and at the same time, Audible’s implication that it might bring reading back actually undermines its non-substitutive claim under the fourth prong of the fair use analysis.

Fair Use Factor Four — Caption Is Not a Substitute?

Unlike Google Books, Caption makes the full text of a book available, so the court should be wary and cognizant of the likelihood that, with minor technological improvements and/or shifts in market dynamics, Caption could conceivably become an unlicensed market substitute for eBooks. So, authors should be very concerned about a fair use precedent in this case—if not for Caption in its nascent form—then for the next iteration of a Caption-like service that could become the new reading for many consumers.

Again, we ignore at our peril that Audible is a subsidiary of Amazon; and it is not the least bit unfair to imagine how a seemingly innocuous feature like Caption can be a springboard for expanding Amazon’s already outsized influence in publishing and elsewhere.  If the court finds that Caption is fair use today, and Audible actually did grow the reading market—as it implies that it can—we begin to see very familiar territory as yet another tech giant positions itself as a monopsony. Does anyone really believe that Amazon would not become to book writers what Spotify is to songwriters?  Really?

In light of Big Tech’s track record so far, this is hardly an alarmist point of view, and anyone who actually cares about writing or reading books can be forgiven a healthy dollop of skepticism about the professed good deeds of any of these companies.  As the New York Times recently reported, Amazon sells foreign-made books that are so poorly produced that they do not even contain accurate reproductions of the text.  Citing George Orwell’s works, David Stretfield notes that the books he acquired include  “… straightforward counterfeits, like the edition of his memoir ‘Down and Out in Paris and London’ that was edited for high school students. The author’s estate said it did not give permission for the book, printed by Amazon’s self-publishing subsidiary.”  So forgive me a raised eyebrow when a subsidiary of this company says it wants to save literature.

While it is certainly not in the authors’ or publishers’ interests to prevent changes in the way people might read in years to come—if indeed changes are on the horizon—these parties must remain the primary stakeholders in that future.  Consequently, if and when the court considers the fourth fair use factor in this case, authors, publishers, and readers should hope that it underlines the statutory mandate to consider potential market harm.  Because there is little evidence to-date that Amazon will not exploit any opportunity in its efforts to become the worldwide distributor of everything.

* Chronicle, Hachette, HarperCollins, MacMillan, Penguin Random House, Scholastic, Simon & Schuster.

Fair Use Error in Seuss/Trek Mash-Up Case Not Good for Small Creators

In order for copyright law to work for all the Whos in Whoville—the small and the tall—legal reasoning must apply equally whether the plaintiffs are major enterprises or kitchen-table start-ups. While it is understandably common in the court of public opinion to favor smaller defendants being sued by larger copyright owners, the fact is that when an error of law disfavors a large owner, it can have an even more profoundly negative effect on smaller creators.  This is a significant problem with the district court holding in Dr. Seuss Enterprises v. ComicMix LLC.  

In 2016 a group of creators, working under the name ComicMix copied Dr. Seuss’s iconic imagery from several classic works and combined these with themes and characters from Star Trek in order to produce a “mash-up” book called Oh, the Places You’ll Boldly Go!.  According to the creators’ testimony, the “Boldly” book was painstakingly designed to mimic Seuss—not only in illustration style, but composition, coloring, etc.—and a side-by-side comparison of the visual works shows that ComicMix “slavishly copied” nearly all of Seuss’s expressive elements in its pages.

Dr. Seuss Enterprises (DSE) sued ComicMix for copyright infringement, and the District Court for the Southern District Court of California held that “Boldly” is a fair use because it is “highly transformative.”  So, once again, this nettlesome doctrine is confusing courts as to the nature of derivative works.*  Because “Boldly” is not a work of commentary about — or parody of — the original, and is merely a different use of Seuss’s expressive elements, the district court erred by not recognizing it as a derivative work, which is the exclusive right of the copyright owner to produce.  Or not produce as he/she sees fit.  (See also, Stephen Carlisle posts here and here discussing this case.)

Fourth-Factor Fair Use Analysis is Troubling for Small Creators

Concurrent with this case being appealed to the Ninth Circuit, Copyright Alliance filed an amicus brief, which points to a specific error in the district court’s unfounded reasoning in its application of the fourth prong of the fair use test.  If the court’s rationale were to be upheld, it would be especially troubling to small, independent, and start-up creators. 

The fourth fair use factor considers the potential market harm to the rightsholder if the contested use were allowed; and that word potential is critical to this analysis because authors do not always know how, when, or why their protected work may be profitable in some new way.  Hence, the aforementioned exclusive right to prepare derivative works is a big part of that potential value, and exploiting that right is neither mandatory nor limited by a timeframe (other than the expiration of copyright itself).  Write a novel next year, and it is up to you to decide when—or if—you want to develop or approve a film adaptation.  The right to exploit your novel for a motion picture does not wane if you choose never to enter the film market or to enter that market many years after publication.

Consequently, when weighing potential market harm, one question the court is supposed to ask is whether the allegedly infringing work would be considered a derivative work under the exclusive rights granted by the copyright act.  If the answer to that question is yes, this weighs in favor of a finding that the contested use does present potential market harm.  And this is true regardless of a plaintiff’s ability to quantify the presumed value of that derivative market—especially if it implies a market she has not yet entered!    

So, because the district court erred in failing to recognize “Boldly” as a derivative work, it then exacerbated this problem by inventing what Copyright Alliance calls a “bright line standard” that does not exist in caselaw, whereby a plaintiff would be required to present evidence to prove the “substantial” market harm caused by the contested use. Now, forget about being a major player like Seuss for a moment and think about being the smallest Who on the dust-speck. 

Imagine being an indie comics author just beginning to get some recognition for your work on Instagram when you discover that some other party has started making merch or animated clips from your characters without license.  Then, when you sue to defend your work, the court says, Well, you weren’t in that market, so you can’t demonstrate how you could have sustained market harm. Or as the CA brief describes in its footnotes …

“One can readily imagine the first-time author whose only market data consists of modest profits from a first novel, with no existing licensing or sequel revenues, failing to show “substantial” harm after a playwright sells a script that co-opts the author’s central plot points and characters.”

This Catch-22 logic is the antithesis of the principle that fair use is meant to extend the purpose of copyright law. Instead, this court’s reasoning merely transfers the author’s derivative works right to another party for no reason other than the fact that the using party was the first to exploit a particular idea for a derivative.  By framing this ruling in those terms, it should be clear why a larger entity, which could expedite time-to-market, may be more likely to do harm to a smaller entity, or an individual, than the other way around.  

In addition to creating a burden of proof for the plaintiff that has no basis in the history of fourth-factor analysis, the district court in Seuss v. ComicMix went so far as to dismiss evidence that DSE had already pursued various derivative-works collaborations and is preparing to do more of same in the future.  So, even with a plaintiff who could come rather close to providing quantifiable evidence of potential market harm, this court still dismissed DSE’s claim in this regard as “merely hypothetical.”  

More specifically, as the Copyright Alliance brief describes, the court “penalized [DSE] for both non-entry into a market and successful entry into other, existing markets.”  In other words, ComicMix’s fair use defense was supported by the fact that DSE had not yet entered the specific mash-up “opportunity” ComicMix had exploited; BUT the defense was also strengthened by the fact that DSE had been successful with other derivatives in general.  

Presumably, the “logic” here seeks to define “potential market harm” as the extent to which an infringer may capture some fraction of the rightsholder’s market—as long as the rightsholder is already financially successful.  That is not the purpose of fair use; and upholding this reasoning could be devastating to the author with much shallower pockets than a DSE.  

Courts do not weigh fair use based on which owners have been “successful enough” to tolerate a particular infringement.  Among other problems, such reasoning literally penalizes success.  “This unfair double-standard would effectively force copyright owners who wish to protect their works to enter all markets while at the same time being careful not to be too successful in those markets,” states the Copyright Alliance brief.  That is an aberration of the purpose of copyright law and, therefore, the purpose of the fair use doctrine.  

* A brief written for this case by Professors Peter S. Menell, Shyamkrishna Blaganesh, and David Nimmer cites both Judge Leval, the author of the “transformative” doctrine, and Justice Souter’s opinion in the seminal Campbell case stating, “it is clear they did not intend for fair use to swallow a large portion of the right to prepare derivative works.”

Black Panther & the American Creative Continuum

When Black Panther opened last month and proceeded to set records at the box office, it just so happened to be 200 years, almost to the day, after Frederick Douglass was born into slavery in Tuckahoe, Maryland. The significance of this particular symmetry might be observed through any number of lenses, including those distorted by presentist emotions, which tend to warp historic narrative. But one truth that unquestionably sits between these parenthetical milestones is a reminder that the progress of American democracy—namely the effort to define and shape its grand promises—has always been literary.

In his Narrative of the Life of Frederick Douglass, an American Slave, Douglass describes his introduction to literacy by Mistress Auld, and the consequent lesson inherent in Master Auld’s rebuke, as follows:

“From that moment, I understood the pathway from slavery to freedom. It was just what I wanted, and I got it at a time when I the least expected it. Whilst I was saddened by the thought of losing the aid of my kind mistress, I was gladdened by the invaluable instruction which, by the merest accident, I had gained from my master. Though conscious of the difficulty of learning without a teacher, I set out with high hope, and a fixed purpose, at whatever cost of trouble, to learn how to read.”

While still a fugitive, Douglass registered this book for copyright in 1845, and it was more than a year later that his friends purchased his freedom from Thomas Auld. This overlap in time, when Douglass owned intellectual property while he was still technically the property of another man, says a lot about the painfully bipolar identity of America, but it also reflects the fact that the evolution of the nation’s literary voice has always been intertwined with broadening the initially too-narrow meaning of American liberty.

As the last of the witnesses to the Revolution were dying off, the first generation of Americans born under the Constitution—most of the population was under 30 circa 1840—inherited the exciting, and often harrowing, task of defining what it actually meant to be American. For some, this entailed reconciling the declarative chutzpah of independence with the many social and political hypocrisies that manifestly betrayed all the beautifully-written hubris of the Framers. And one answer to this dichotomy was the advancement of a national literature.

By the time Douglass published Narrative, a literary revolution was already reshaping the fledgling nation. In an 1837 address at Harvard, Ralph Waldo Emerson called upon America’s next generation to produce literature that shed reliance on the conventions of England. “Our day of dependence, our long apprenticeship to the learning of other lands, draws to a close. The millions, that around us are rushing into life, cannot always be fed on the sere remains of foreign harvests. Events, actions arise, that must be sung, that will sing themselves,” he said in his opening remarks.

Any reader of Walt Whitman’s poetry will note Emerson’s use of the verb sing, and indeed “Leaves of Grass,” first published in 1855, was one of the most famously overt responses to this summoning of national identity through creative expression. Whitman was among the authors—others included Hawthorne, Melville, and Whittier—who coalesced around the newspaper The Democratic Review, founded in 1837 by John O’Sullivan. The mission of the Review was to advance a younger, more diverse, and more expansive vision of democracy through a literature of “original works treating commonplace themes with forcefulness, directness, and dignity,” writes historian Edward L. Widmer in his book Young America: The Flowering of Democracy in New York City.

This was America’s first generational culture clash, in which the Young Americans, as Widmer describes, stood in opposition to an older and more conservative population of Whiggish elites. It was this literary-political agenda that shifted the cultural center of gravity from Puritan Boston and Philadelphia to riotous, diverse, petulant, exuberant, and unabashedly commercial New York.

While a proper schematic of the social and political views among these forces is too complex to describe in a short post,* the emphasis on prodding the American creative voice into its own was intertwined with the general aim of expanding the promise of civil rights and dignity to a plurality of American citizens. “I speak the password primeval … I give the sign of democracy;/By God! I will accept nothing which all cannot have their counterpart of on the same terms,” wrote Whitman, who, interestingly enough, was an advocate of copyright as an engine of democratic principles more than one of economic necessity.

In the narrative of the ever-evolving American voice, we can draw a line from Douglass literally stealing literacy to transcend his captivity to the moment when Mark Twain in a single sentence in Huckleberry Finn simultaneously obliterates moral ambiguity about slavery and asserts the power of vernacular in American literature. “All right then, I’ll go to hell,” says Huck upon his decision not to turn in Jim as a runaway slave. From there, we can draw a long but clear arc to the video review by Danielle Radford for Screen Junkies in which she explains why Black Panther is “black as fu©#.” Because its cinematic language employs a vernacular that is uncommon among Hollywood blockbuster movies.

Yes, Black Panther is just a Marvel action film full of chases and fight scenes and magic, as expected. But that’s why it’s significant. As Radford describes, its subtle choices—the million tiny decisions where film artists are truly at work—broaden the cinematic language in a way that actually reverses her opening declaration. The relevance is perhaps not that the film is “black as fu©#” but that it’s American as fu©#. And it has always been the role of creative artists to write and revise exactly what that means.

*In particular, the subject of abolition among the various factions would require a whole post just to set the stage.