{"id":7450,"date":"2019-09-18T02:40:48","date_gmt":"2019-09-18T02:40:48","guid":{"rendered":"https:\/\/cpip.gmu.edu\/?p=7450"},"modified":"2026-05-13T19:34:45","modified_gmt":"2026-05-13T19:34:45","slug":"publishers-v-audible-an-army-of-red-herrings","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2019\/09\/18\/publishers-v-audible-an-army-of-red-herrings\/","title":{"rendered":"[Archived Post] Publishers v. Audible: An Army of Red Herrings"},"content":{"rendered":"

\"aAudible has now filed its response<\/a> to the publishers\u2019 request for a preliminary injunction\u2014twice. It filed the exact same brief to argue that it shouldn\u2019t be preliminarily enjoined (Dkt. 34) and to argue that the complaint<\/a> should be dismissed for failure to state a claim (Dkt. 41). Unfortunately for Audible, the repetition of fallacious arguments doesn\u2019t make them true. You may have heard that a group of geese is a \u201cgaggle\u201d and that a group of crows is a \u201cmurder.\u201d Groups of animals are often known by somewhat peculiar collective nouns. Perhaps less well-known is that a group of herrings\u2014those foraging fish<\/a> that favor shallow, temperate seas\u2014is called an \u201carmy<\/a>.\u201d Audible\u2019s response includes so many irrelevant distractions that it can accurately be described as an army of red herrings.<\/p>\n

Audible argues that this should be a contract dispute, not a copyright case, and that Captions is nevertheless fair use\u2014no matter who is doing the copying. Indeed, the one thing that Audible apparently wants to avoid discussing in detail is the one thing that I find interesting in this case, namely, who directly causes the various prima facie<\/em> infringements of the publishers\u2019 rights to occur. Audible\u2019s response makes clear that it would rather jump straight to the fair use analysis without first analyzing exactly who is causing what to occur. But that fair use analysis only makes sense if we know who is doing the copying. The factors would be applied differently to Amazon, Audible, or its users, and Audible\u2019s response elides such distinctions even though they are crucial.<\/p>\n

In my last post<\/a> about this case, I discussed how Audible was likely to cite cases such as Sony<\/em> and Cablevision<\/em> in arguing that it doesn\u2019t make the copy, the user does, and that\u2019s fair use. Remarkably, Audible does<\/em> suggest that the user makes the copy, but it relegates this claim to the preliminary, factual background section of the brief\u2014it\u2019s not actually part of its main argument section. But this does give us some idea of what Audible will argue once it\u2019s forced to clarify its theory of the case. Perhaps most interesting of all, Audible explains how the third-party Amazon Transcribe feature operates within Captions, and it’s less favorable to Audible than I had originally suggested.<\/p>\n

Audible explicitly states that \u201ca listener generates Audible Captions.\u201d So that tells us who Audible thinks is doing the copying\u2014and it\u2019s not Audible. There are no citations to any case law, and there\u2019s no explanation of why it\u2019s the user doing the copying. Just the ipse dixit<\/em> that it\u2019s so. Audible then explains that the transcriptions are not, as I suggested in my last post, simply done in real time via Amazon Transcribe. That may be true in part, but the entire<\/em> audiobook file is also sent to Amazon where it is converted into text and then sent back to the user. And that entire<\/em> transcription is then stored on the user\u2019s device, albeit in an encrypted file. Moreover, once one user requests a transcription, a cached copy of the file is then stored for 90 days on the server, and any subsequent user requesting a transcription of the same work in that time frame will get the cached copy\u2014not a new transcription.<\/p>\n

This business with the cached copy opens up another can of copyright worms, one that Audible presumably is not looking forward to discussing. Not only is there a full copy of the text on the user\u2019s device, but there\u2019s also another copy on the server. And there\u2019s no doubt that both copies are fixed since there\u2019s no argument that they exist for a mere transitory duration. Furthermore, the fact that the same source copy is being sent to different users destroys any claim under Cablevision<\/em> that Audible might make that these are not public<\/em> distributions. The Second Circuit there held that the transmissions weren\u2019t public since there was a unique source copy that was used for each transmission to an individual user. While I don\u2019t see how that holding survives Aereo<\/em>, the cached copy here takes that argument off of the table.<\/p>\n

Audible spills much ink arguing that Captions is not a replacement for the text of the underlying book since the experience<\/em> with the same text of the transcription is different. For example, unlike an e-book, Captions displays at most 20 words at a time that is synchronized to the audio. And this \u201caudio-first experience\u201d has different punctuation, there are no page numbers, and the user can only scroll through the text by first scrolling through the audio. Of course, it\u2019s true that there are differences between the user experience with Captions and an e-book, but these differences are irrelevant to the publishers\u2019 prima facie<\/em> copyright claims. Just because the user experiences the work differently doesn\u2019t mean that there hasn\u2019t been all sorts of actionable copying enabling that experience. These differences may be relevant to fair use, but not one of them matters for determining who is doing what.<\/p>\n

After throwing its users under the bus by claiming that they make the copies with Captions, Audible sidesteps any actual analysis of that issue by arguing instead that the publishers failed to properly plead their copyright claims. The crux of Audible\u2019s argument is that, since it has license agreements with the publishers to sell and produce audiobooks, the publishers have waived their right to sue for copyright infringement to the extent Audible\u2019s conduct is licensed. Audible then argues that the burden is on the publishers to plead the licenses and conduct that exceeds their scope (or a violation of their conditions precedent) in order to state a copyright claim. And since the publishers didn\u2019t plead any reason why the licenses wouldn\u2019t permit Audible\u2019s copying of the audiobooks, Audible argues that the case against it should be dismissed.<\/p>\n

Audible correctly states the law, but not its application here. When the existence of a license is not in question, the copyright owner bears the burden of proving that the alleged infringer exceeded its scope or breached its condition. And Audible is certainly correct in arguing that it is a \u201clicensed, paying user of the audiobooks from and for which it created Audible Captions.\u201d Audible has licenses for the audiobooks, and the publishers didn\u2019t plead them. The fallacy of this argument, however, is that the publishers\u2019 copyright claims are not directed to those audiobook licenses\u2014or even to those audiobooks. The publishers only claim infringement of the underlying works, that is, the literary works from which the sound recordings of the audiobooks are derived. Audible is probably violating various rights in the audiobooks as well, but the publishers have not brought those claims.<\/p>\n

That the publishers are suing over the original books, and not the derivative audiobooks, is clear from the face of the complaint. The publishers charge Audible with \u201cunlawfully creating derivative works of, reproducing, distributing, and publicly displaying unauthorized copies of the Works,\u201d and the works identified are the registered, literary works of which the publishers are legal or beneficial owners. The complaint explicitly alleges that \u201cAudible did not seek a license for the creation and provision of the transcriptions provided to consumers\u201d and that \u201cit has only been authorized to deliver the work in audiobook format.\u201d If Audible turned an audiobook into a movie, the publishers would not have to plead that Audible thus exceeded the scope of its license for the simple reason that there was no such license to create the derivative movie in the first place.<\/p>\n

The fact that the allegedly infringing transcriptions have as their source the licensed audiobooks doesn\u2019t matter; what matters is that the transcriptions violate the publishers\u2019 rights in the underlying literary works. For the bulk of audiobooks at issue that Audible didn\u2019t create, i.e.<\/em>, the ones that were provided by the publishers or third parties, Audible had no license to create derivative works of any kind. And for the few audiobooks that Audible itself may have created under license\u2014though Audible noticeably doesn\u2019t claim to have a license to create derivatives of any of the specific works-in-suit\u2014it only had a license to create the derivative sound recordings embodied in the audiobooks. Audible\u2019s hand-waving about licenses is easily dismissed because, quite simply, there was never any license to create the derivative literary works over which it is being sued.<\/p>\n

Despite the army of red herrings summoned to obfuscate its theory of exactly who is doing the copying in this case, the burden falls squarely on Audible to establish the existence of any license that may justify its actions. And the fact that Audible failed to mention any such license speaks volumes. Audible instead jumps straight to fair use, making the incredible claim that providing the text of the audiobook is somehow completely different than providing the text of the underlying book itself because the former allows users to \u201cunderstand and engage with the audiobook they purchased.\u201d I\u2019ll leave the absurdity of Audible\u2019s fair use argument for another day, but for now I\u2019d like the court to sort out the preliminary issue of who is doing what. And that appears to be a conversation that Audible would rather not have.<\/p>\n","protected":false},"excerpt":{"rendered":"

Audible has now filed its response to the publishers\u2019 request for a preliminary injunction\u2014twice. It filed the exact same brief to argue that it shouldn\u2019t be preliminarily enjoined (Dkt. 34) […]<\/p>\n","protected":false},"author":3627,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10],"tags":[93,172,243,337,345,439,543,697,885,1189,1210,1370],"class_list":["post-7450","post","type-post","status-publish","format-standard","hentry","category-copyright","tag-aereo","tag-audible","tag-cablevison","tag-copyright-2","tag-copyright-infringement","tag-direct-infringement","tag-fair-use","tag-infringement","tag-license","tag-publishers","tag-red-herring","tag-sony"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7450","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/users\/3627"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/comments?post=7450"}],"version-history":[{"count":1,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7450\/revisions"}],"predecessor-version":[{"id":15710,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/7450\/revisions\/15710"}],"wp:attachment":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/media?parent=7450"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/categories?post=7450"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/tags?post=7450"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}