When Audible first announced its Captions launch on July 15th, the new tool was presented with the notion of giving back to public education and improving children’s literacy. This announcement was followed up with an online presentation on July 31st, designed to put minds at ease that no, Audible was not out to harm sales of e-books.

First, they presented the previous Audible technology called Immersion Reading, which allows users to purchase an audiobook and e-book, and have the book read to them as they turn the pages of the e-book.

Next the presentation moves to what Audible is calling Captions, which is available free of charge with the purchase of any audio book. In Captions, just fifteen words appear on the screen of the smartphone, engaging children who would not otherwise pick up a physical book. The words disappear in just a few seconds, but while they are on the screen they can be looked up in a dictionary or translated into another language, just by selecting the word. 

The aim of Captions, Audible states, is to help improve children’s literacy. They cite their efforts within the city Audible is based out of – Newark, NJ – through their charity Project Listen Up, which the students of Newark schools with Audible memberships, as well as bundles of 150 audible books handpicked by educators. Project Listen Up has benefited over 11,000 students, and Audible states that they intend to grow the program to reach far more students in years to come. 

Founder and CEO of Audible, Don Katz, states that, “We developed this technology because we believe our culture, particularly in under-resourced environments, is at risk of losing a significant portion of the next generation of book readers.” The presentation claims that less than 20% of teens read any kind of physical print for fun (they do not provide link or citation to back this claim). Don states that, “We are committed to doing what we can to help address this serious issue and we believe marshalling new technology like Captions to meet students where they are, via an audio service on their phone or tablet, is a step in the right direction.”

While its intentions appear to be positive, the wording of the July 31st presentation is suspect. Audible opens with how surprised they were that the AAP had such a negative response over the Captions tool. However, in stating that their aim is to bolster literacy and reading, one could easily see how such a tool would then take away from book sales. Captions would allow users to read and listen at the same time; the outcome of which would obviously have a negative impact on the publishing market.

Recent statistics have shown a continued rise in the sale of audiobooks and children’s books, while the remaining print and e-book markets have shown little to no growth. Backlist accounted for 73% of all children’s sales. Backlist, which is items that are republished after having gone out of print, are often brought to digital first. 

In short, the publishing statistics of 2018 and 2019 show a definitive case of children’s backlist titles and audio books continuing to grow. So while Audible can claim all it likes that Captions is simply a tool for benefiting education, the evidence is clear that is indeed a tool to make money, and Audible stands to make a lot of it should Captions survive this lawsuit. It is also important to note that Audible is a subsidiary of digital publishing giant Amazon. 

On August 23rd, the AAP as well as every major US publishing house, filed a joint suit against Audible to halt the Captions program. Despite Audible’s claims during its presentation that publishers simply needed to see how the program worked to understand that Captions did no harm to other publishing formats, the presentation was all it took for AAP to take Audible to court. A press release by the AAP stated that publishers, “seek a preliminary injunction to avoid irreparable harm to their present and future copyright interests.” This lawsuit by the AAP was then immediately backed by the Authors Guild, with statements from bestselling authors  Douglas Preston and Lee Child. 

Audible agreed on August 28th to delay the release of the Captions program, originally slated for the beginning of September, as well as remove all works of publishing houses participating in the lawsuit until the legal matter is resolved. Then, on September 13th, Audible presented the court with a move to dismiss the case entirely, claiming that “by agreeing to those licenses, Plaintiffs waived their right to sue for copyright infringement as a result of licensed conduct.” 

This dismissal would resolve the legal matter, resulting in a completely new lawsuit. This would allow Audible to enroll all books it is licensed to sell in its Captions program effective immediately.

 The definition of the Captions feature which appears to be the focus of Audible’s Fair Use argument is that no more than 15 words can appear on the screen at any given time. Though the user can tap on the words to look them up in a dictionary or translate them into another language, the words will disappear within seconds of them being read. Once it’s gone, the text cannot be accessed again. The text is not written by a person – hence the claim that it is under fair use as no person has rewritten it – but is “generated by off-the-shelf, freely available speech-to-text technology.” 

The counterargument made by the AAP, all Big Five Houses, and Scholastic, is not one filing but three. The first was a memo to stop the roll out of Audible Captions. The second was a memo in opposition to Audible’s motion for dismissal on grounds of fair use. The third was a reply declaration in which the VP of Scholastic states that faults in the Audible Captions programming transgress the quality requirements by which Audible is held to per audiobook publishing contract. 

Clear evidence to back this claim is presented in the Points, Counterpoints article by Publishing Perspectives. An obvious typo occurs due to the AI generated text – “Mrs. Hurst and Miss Bingley” becomes in Captions: “Hurtamiss Bingley.” Such faults would undermine the notion that Audible Captions is a tool for fostering literacy in young readers, secondary english speakers, and readers with disabilities. 

The AAP claims that errors such as these account for as much as 6% of Audible Captions Immersive Reading program, not including the lack of paragraphs and proper punctuation due to having only 15 words on a screen at any given time. 

Lois Bridges, VP of Scholastic, explained to the court that as publishers, their goal is to provide readers with text that is coherent, accessible, and free from error – considerate text. In fact, with a fault rate of 6%, Bridges argues that “embarrassing errors in Audible’s own demonstration videos demonstrate that the distributed text inhibits comprehension of complex texts… For those struggling students, the format is actually detrimental to their comprehension and does not help improve engagement with a literary work.”

In addition to this contract breach of quality, the AAP also argues that both the publishers and the authors they represent hold valid copyrights, and this copyright makes it clear that the right to resell audio is seperate from the right to resell text. As such, Captions violates the publishers’ copyrights. 

While the judge did not grant the injunction to halt the Audible Captions rollout entirely at the September 25th hearing, Caproni appeared to more receptive of the AAP and the Big Five publishing houses arguments than Audible’s claims that Captions is not the same as reading a book. While Audible claimed that Captions does not provide a reading experience, Judge Caproni stated, “What do you mean it’s not a reading experience? It’s words.” 

Judge Caproni called for an expedited discovery, and an initial trial date for the end of 2019. She also asked for the parties to hold in place, meaning that Audible will have to continue to hold off on applying Captions to any of the titles currently under suit until the trial is complete.

You may be asking yourself – why does all of this matter? If I’m not publishing audiobooks, how does this affect me? 

What makes the case of Audible versus AAP so important is because it is the first of its kind, the sort of case for which decades of further proceedings will rely on. With technology further advancing at a rapid rate, the overlap of  digital media forms – such as text and audio with Captions – will only continue to occur. The findings of this lawsuit will not be the end of publishing copyrights, but the initial foundation for all emerging digital formats to come. 

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