Amazon and Book Publishers Battle Over Audiobook Captions
The publishing industry’s “Big Five” (Hachette, HarperCollins, Macmillan, Simon & Schuster, and Penguin Random House), as well as Chronicle Books and the children’s book publisher Scholastic, have filed suit against Amazon, alleging that Amazon’s subsidiary Audible is violating copyright law with a planned speech-to-text feature packaged with audiobooks sold by Audible.[1] In July, Audible announced Audible Captions, which allow listeners of audiobooks purchased on Amazon to read along with text captions, generated from the audiobook recordings.[2] Amazon also released a video demonstrating Audible Captions.[3] Book publishers contend that Audible Captions are the equivalent of unauthorized eBooks under copyright law.[4]
Almost immediately after the announcement of Audible’s captioning program, Simon & Schuster described the program as “an unauthorized and brazen infringement of the rights of authors and publishers.”[5] Large corporate book publishers are not the only ones who oppose the Audible Caption program. The Authors Guild and independent publishers expressed support of the lawsuit, describing the “caption” program as “without authorization and in violation of its contracts with publishers” as well as “outrageous” and “copyright infringement.”[6] The CEO of the Association of American Publishers, Maria Pallante, articulated the basis of the dispute as Amazon violating “explicitly licensed audiobook agreements” by “creating wholly unauthorized, text versions of these audio performances.”[7]
The complaint filed by the publishers describes the captioning program as “quintessential infringement” of the rights protected by the Copyright Act by creating derivative works of copyrighted works owned by the publishers and reproducing, distributing, and publicly displaying those derivative works.[8] The dispute between the publishers and Amazon is unusual in that Amazon holds licenses for some of the rights within the bundle of rights afforded by copyright for certain books.[9] In general terms, Audible has agreements with many publishers to distribute audiobooks and agreements with some publishers to produce audiobooks, but has no authorization to distribute eBooks.[10] Audible did not seek or obtain a license to create the transcriptions used for Audible Captions and does not plan to compensate publishers or their authors for Audible Captions.[11]
Amazon responded to the publishers’ lawsuit with the fair use defense and has agreed, at least temporarily, to exclude the plaintiff publishers’ books from the Audible Caption program.[12] Fair use is determined by four factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.[13] In addressing the substantiality factor, Amazon argues that it does not use more of the copyrighted material than is reasonably necessary to its fair use purpose.[14] Amazon further cites Authors Guild v. Google, Inc., noting that “[c]omplete unchanged copying has repeatedly been found justified as fair use when the copying was reasonably appropriate to achieve the copier’s transformative purpose and was done in such a manner that it did not offer a competing substitute for the original.”[15] However, a critical difference between the full-text search functions found to be permissible fair use under Google, Inc., as well as the related case Authors Guild, Inc. v. Hathitrust, is that those search functions did not display the entirety of the text of a book to a user as Audible Captions do.[16] The search function in HathiTrust did not display to the user any text from the underlying copyrighted work, and the search function in Google, Inc. allowed less than 16% of a book’s text to be displayed regardless of the number of searches performed.[17] Furthermore, the court in Google, Inc. stated that,
“At least as important as the percentage of words of a book that are revealed is the manner and order in which they are revealed. Even if the search function revealed 100% of the words of the copyrighted book, this would be of little substitutive value if the words were revealed in alphabetical order, or any order other than the order they follow in the original book. It cannot be said that a revelation is ‘substantial’ in the sense intended by the statute’s third factor if the revelation is in a form that communicates little of the sense of the original … If snippet view could be used to reveal a coherent block amounting to 16% of a book, that would raise a very different question beyond the scope of our inquiry.”[18]
Audible Captions, by their very design and intended purpose, reveal 100% of the words of a copyrighted book in the order they follow in the original book and communicate the sense of the original. However, even if the substantiality factor weighs in favor of the publishers, it may be outweighed by transformation factor. The dispute ultimately rests on whether converting a recorded audiobook into digital text is transformative, or, in other words, whether captions provide utility beyond what existing eBooks already provide and that utility justifies the taking of the entirety of a copyrighted text.
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