Tag: fair use

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.

Fourth Circuit in Brammer: A Win for Copyright Sanity. A Guide for Users of Works.

Visual artists should be very relieved by last week’s decision at the Fourth Circuit Court of Appeals, overturning the District Court’s finding of fair use in Brammer v. Violent Hues.  Frankly, fair use advocates should be happy about the ruling, too, because nobody who sincerely cares about copyright should celebrate an error of law.  If a court simply disregards the exclusive rights of authors, as the District Court did in this case, the fair use doctrine becomes a meaningless exception to a non-existent rule. 

“…difference in purpose is not quite the same thing as transformation.”

If I had to pick one takeaway from this case for users of works in the digital age, it would be the citation to this quote from Infinity Broadcasting Corp. v. Kirkwood (1998).  As mentioned many times on this blog and elsewhere, the “transformativeness” test, which became part of the fair use analysis after 1990, is a troublemaker.  For a great summary describing how and why it became a troublemaker, I recommend this three-part post written by Scott Alan Burroughs on Above the Law.  

To stress what a pain in the butt this concept can be, I stated in a recent post that simply “placing a work in a new context” is not “transformative.”  But even using the term “context” is nettlesome because courts may use that term to describe “transformative” uses that are non-expressive.  For instance, the Fourth Circuit in Brammer has provided a handy explanation of the distinction between those uses and the infringement committed by Violent Hues.  The opinion states that there are two viable paths for finding fair use when a contextual (i.e. non-creative) change is “transformative”:  technological uses and documentary uses …

Technological

“In the first category, copyrighted works provide raw material for new technological functions. These functions are indifferent to the expressive aspects of the copied works. For example, we have held transformative the total reproduction of student essays for a plagiarism detection service because the database served an “entirely different function” that was unrelated to the expressive content of those essays.”

Documentary

“In the second category, copyrighted works serve documentary purposes and may be important to the accurate representations of historical events. These representations often have scholarly, biographical, or journalistic value, and are frequently accompanied by commentary on the copyrighted work itself.”

Admittedly, even documentary does not easily fit into the non-expressive family of fair uses because documentary is expressive and, perhaps most importantly, scholarship, biography, journalism, and commentary were already stated among the purposes of fair use fourteen years before Judge Pierre Leval wrote the paper, Toward a Fair Use Standard, which added the concept of “transformativeness” to the fair use test.  

We’ll leave that can of worms unopened for now. Suffice to say that Violent Hues’s publishing Brammer’s photograph on a website to promote a film festival does not describe either of the court’s two contextual fair uses. “What Violent Hues did was publish a tourism guide for a commercial event and include the Photo to make the end product more visually interesting,” states the opinion. “Such a use would not constitute fair use when done in print, and it does not constitute fair use on the Internet.”

It is so easy to click, edit, and repost any image that pausing to consider legality is apparently overwritten as a necessary step.  (And the defendant in this case is a professional image-maker who should have known better.) I’ve said it before in posts about fair use.  There are too many messages whirling around in cyberspace, denigrating copyright owners’ rights and disfiguring the nature of fair use, that it is easy to imagine how a gist of these ideas seeps into the mind of a user about to publish a work he has no right to use. 

For users who would prefer not to wander into the tall grass where attorneys, scholars, and jurists debate the meaning (or lack thereof) of “transformativeness,” there is little need to go there.  The Fourth Circuit in Brammer has provided a pretty basic set of rules for the use of works “in new contexts,” which I presume to summarize as follows:

If you are not engaged in a fairly large-scale technology enterprise using the non-expressive aspects of a corpus of works to power a new and useful system, your use is very likely not “transformative.”

If you are not producing a work, in which you comment upon the used work, your use is very likely not “transformative.”  

If you are not producing a new expression that depends upon altering the used work, your use is very likely not “transformative.”

If, you “find”a photograph online that you think would jazz up your web page, no matter what you think it’s communicating, either get permission, make sure it’s free to use, take your own picture, or license a cheaper picture because your attorney is probably going to fail—at least on appeal—in any attempt to TRANSFORM your lapse in judgment into a sound fair use defense.  

Meanwhile, don’t try assessing “transformativeness” at home when even the legal experts are still arguing about what it means.  As Burroughs addresses in his posts, the “transformativeness” test does not have the caselaw-to-statutory history that produced the four-factor test for fair use codified in 1976.  This is unfortunate because a prospective user of a work should be able to conduct at least a preliminary fair use test without an attorney; and the original four-factor test, while subjective, is much easier without the “transformative” filter.  

Most simply, a user like Violent Hues should jump straight to Factor Four and ask themselves whether the proposed, unlicensed use, if made repeatedly by other parties, would deprive the copyright owner of a market opportunity that is rightly his to exploit.  The unequivocal answer to that question in this case was yes.  If a photographer does not have the right to license his images, then his exclusive rights in the copyright law do not exist; and if those rights do not exist, then neither does the fair use exception or, for that matter, the entire miscarriage of reason that produced this fiasco of a lawsuit.

Courts Being Led Down Rabbit Hole in Photograph Copyright Case

Oral arguments were presented this week at the Fourth Circuit Court of Appeals in the case of Brammer v. Violent Hues Productions, Ltd.  I first wrote about this story in June of 2018 after a district court in Virginia concurred with an incomprehensible fair use defense—one with implications that threaten the interests of copyright owners in every category.  To quote the summary I used in my June post: 

At issue is a time-lapse photograph of Washington D.C.’s Adams Morgan neighborhood taken by Russell Brammer in 2011 and registered for copyright in 2016. Also in 2016, a cropped version of the image was used without license on a website suggesting “things to do” in Washington as ancillary promotion of the Northern Virginia Film Festival, which is organized by Violent Hues Productions.  

Violent Hues is owned by Fernando Mico, who stipulated that he found Brammer’s photo on the web and assumed it to be in public domain.  Why this is reasonable conduct, especially for a professional in visual media, is a mystery to me; but suffice to say, the Fourth Circuit Court of Appeals is now weighing a fair use claim that never should have survived beyond its first syllables.

Violent Hues asserted fair use on the grounds that its use was “transformative” (under the first factor) because Brammer’s original purpose was “expressive” while Mico’s purpose was “informative.”  Right there is where the district court should have rejected the fair use claim and recognized that the defendant’s logic not only flies in the face of more than a century of precedent, but that it would have the effect of vitiating copyright at its core. 

A fatal flaw in the defense’s reasoning is that it rests on an assumption of an observer’s interpretation of a photograph—either as “expressive” or “informative”—-which should never be a consideration in this kind of copyright infringement claim.  The “ordinary observer” is only relevant in copyright cases that compare and contrast two different creative expressions where a first author claims that the second author has copied his work (e.g. Blurred Lines).  This is not that kind of claim.

Here, the defendant did not make a new expression of any kind.  He merely reproduced and publicly displayed a visual work without adding anything new that might remotely qualify the use for consideration under the doctrine of “transformativeness.”  Hence, the district court should not have given the rest of the fair use analysis any weight.  If the courts find that it is sufficient to do nothing more than move a protected work from one context into another in order to advance a fair use defense, then Brammer has the potential to do great harm to copyright.  Because context is always fluid.  

Neither authors nor their works are required to remain in contextual lanes.  A photographer who initially presents her work as “fine art” in a gallery is free to license one of her images for use in an advertisement, or to reject such an offer if she chooses.  This example is exactly comparable to the issues in Brammer.  It does not matter what Russell Brammer’s intention was when he made the photograph or what Mico’s intention was when he used the photograph. To conclude otherwise would obliterate the foundation of nearly all licensing because a wide variety of uses—probably most uses—are contextually distinct from the authors’ original intent at creation.

For instance, the story just broke that the exercise equipment and subscription service Peloton is being sued for $150,000,000 for failing to obtain synch licenses for over 1,000 songs used in its exercise videos.  Assuming that’s a factual claim, will Peloton present a fair use defense that the artists and songwriters “never intended to make exercise music” and that, therefore, the uses in their videos are “transformative”?  If Violent Hues’s defense holds water, such a claim, ridiculous as it is, would suddenly seem to have merit.

Courts will only muddy well-established doctrine when, for no reason, they attempt to parse the myriad intentions of authors, the mercurial interpretations of observers, or the claimed purposes of users of creative works in cases like Brammer.  As opined in my previous posts, the reasoning of the defense seeks to metaphysically divide a photograph into its “expressive” nature and its “informative” nature and then argue that the author only exploited the former, leaving others to freely exploit the latter.  This is absurdity fomenting chaos in copyright law.  As counsel for Brammer noted in his address to the panel, nearly all photographs are, on some level, informative and expressive at the same time. 

I will also reiterate the premise that if the court upholds the claim that an exact copy of a photograph was “transformed” from an expressive work into an informative work, then it must conclude that Violent Hues infringed Brammer’s right to prepare derivative works under §106(2) of the copyright law.  This is also an absurdity but is legally sound IF the defense’s fair use argument asserts that a single work can have multiple identities based on the mental states of users and the presumed interpretations of observers.  Such discussions are fine for art historians and critics but are untenable as a matter of law. 

As Justice Holmes stated in the majority opinion in Bleistein v. Donaldson (1903), “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.”  This was an opinion on the copyrightability of visual works made for advertising purposes; but Holmes rather presciently advises that copyright law is not well served when the judiciary presumes to play the role of art critic.

Unfortunately, because the district court agreed with Violent Hues’s fair use premise, the rest of the four-factor analysis becomes relevant; and this week’s oral arguments were frustratingly devoted to a lot of discussion about the commercial v. non-commercial nature of the use as well as the consideration under the fourth factor as to whether the use may cause potential market harm to the original work.  Neither consideration should ever have been weighed because the defendant’s use was not “transformative” in the first place.  But here we are.

I will also note the fact that counsel for Brammer implied at one point that his client might have preferred not to have pursued this particular claim in federal court but that “we have no small claim” option.  This caught my attention because I actually wrote a post theorizing that this particular case seemed well-suited to the kind of small claim provision advocated by the CASE Act.  As it stands, Brammer has proceeded with a relatively small claim that, to no fault of his, now has huge implications because the district court erred so egregiously.  Let’s hope the appeals court reverses the decision.

Potion image by popaukropa