Major Publishers Sue Audible over Captions Feature

Publishing insiders consider the legal, economic, and educational implications of Audible’s new Captions

In July, Audible (owned by Amazon) announced that it would start offering captioned audiobooks through a feature known as Captions. Immediately, publishers’ and authors’ organizations expressed alarm, accusing the company of outright copyright infringement that would harm ebook sales. When we initially covered this story, it was unclear if publishers and Audible would find their way to a friendly agreement. We now have an answer.

On August 23, seven members of the Association of American Publishers filed suit against Audible to stop it from moving ahead with Captions. The publishers say that Audible is engaging in “quintessential infringement that the Copyright Act directly forbids” by creating a derivative work (captioned audio) without payment or permission. By doing so, publishers argue, Audible gives itself a competitive advantage against those who are not willing to violate copyright law.

Audible immediately responded to AAP’s suit with a statement that defends its use as educational: “Captions was developed because we, like so many leading educators and parents, want to help kids who are not reading engage more through listening.” However, as Michael Cader points out in Publishers Lunch, Audible intends to apply Captions to a broad selection of adult trade titles, not just kids’ books—and directly says in its FAQ that the feature will be available for all titles “that pass our quality threshold” and for all customers.

Likely damaging to its case is the fact that Audible has licensed rights for audio-and-text bundles in the past. Literary attorney Tim Brandhorst of the Aquitaine Agency points to Audible’s Immersion Reading, an add-on to Kindle purchases that has been available for a few years. The customer pays for the Kindle book, then pays extra for the audiobook extension. “Audible says this add-on [purchase] is just 1 percent of their unit sales,” according to Brandhorst, so it may be negligible in terms of volume and revenue—but it’s “a stable and agreed-upon rights arrangement with publishers.” Audible is positioning Captions as something completely new and unlike Immersion, but Brandhorst says, “That’s how a product developer might see it. But watching the demo, I can’t help but think that Captions is so awfully close to Immersion reading that, from a customer standpoint, I don’t understand why Captions isn’t simply another way of using Immersion reading. It’s nearly the same thing, just displayed a different way.”

Inside the industry, we’ve found sympathy and support for this feature on the grounds of accessibility. Kassia Krozser, a longtime publishing industry and entertainment media veteran—with expertise in royalty reporting—says that accessibility is something the industry really ignores. She recently wrote in a private discussion group, “Why not support technology to make books more accessible to more readers? Why are authors fighting this? You cannot convince me that someone who uses this feature on an Audible book is stealing sales from other editions. … This isn’t going to stop people from reading print. This is, honestly, baby steps toward accessibility.” She says it’s long past time that the industry considers the reality of what and how readers (including those who listen to books) interact with media.

Some industry insiders agree with Krozser that the Captions feature is unlikely to undermine sales. Bill McCoy, a digital publishing expert, says that subtitles are a helpful aid to comprehension, especially for ESL speakers, and such technology opens literature to a broader audience. Similarly, German publishing consultant Sebastian Posth says that some Reddit readers like the idea of Captions as an assist for learning a second language. His theory is that reading along seems to be a generic use case for audiobooks—that it will drive audiobook sales rather than cannibalize ebook sales. Yet he believes that Audible does not have the right to feature Captions without permission or renegotiation of current agreements. “Maybe,” he says, “either the current agreements and copyright law are broken when they do not cover what could be understood as a generic use case.”

Brandon Butler, the director of information policy at the University of Virginia, suspects the increased ability to comprehend the audiobook is surely the vast majority of use cases. In the same discussion group mentioned earlier, he wrote of the AAP lawsuit, “The principle that animates all these kinds of lawsuits and threats [is] the same principle that animated the Google Books lawsuit and the saber-rattling over Kindle text-to-speech: that every new use must be licensed and monetized, because intellectual property is about maximizing the ability of rights holders to profit. That has never been the law or policy of copyright, and I hope it never will be.”

Bottom line: Whether book sales stand to be affected or not, most publishers and authors argue that their rights must be defended. Moreover, it’s naive to assume altruistic intent from Amazon. Industry consultant Mike Shatzkin says, “Portraying people as greedy or heartless for defending what look to me like totally legitimate intellectual property rights can be effective rhetoric, but it is not logical or fair.” And Mary Rasenberger, executive director of the Authors Guild (which came out in support of the publishers’ suit), says that Audible is not offering Captions “for the betterment of the world or to provide access to the hearing or visually disabled.” Rather, she argues, “Amazon is driven purely by profit motives. … Call me a cynic, but I doubt it has much to do at the end of the day with accessibility or being pro-education. They should get licenses like other audiobook producers and retailers.”

We’ll soon find out what the courts have to say. On August 28, Audible agreed to exclude works from a group of major publishers from its Captions program until the issues from the lawsuit are resolved. A court hearing on Sept. 25 will bring more news. Learn more at Publishers Weekly.