Audio book company responds to publisher’s allegations of copyright infringement. CHRONICLE v. AUDIBLE

A copyright is a set of exclusive rights granted to the creator of a new work of expression. Works such as paintings, books, photographs, and audio recordings are eligible for copyright protection. The creator of such works is granted a copyright automatically by United States Copyright Law, when the work is fixed in a tangible medium. A copyright owner can register their copyright with the United States Copyright Office to strengthen the rights associated with the copyright, but registration is not a condition precedent to the creation of the copyright. Copyright law grants the owner of a copyright the exclusive right to reproduce, distribute, display, perform, transmit and make derivative works based on the original work. If someone exercises one of these exclusive rights without authorization from the copyright owner that can be considered copyright infringement.

Copyright law grants a copyright owner relatively comprehensive control over their works, however there are some limits to the rights granted by copyright law. A fair use defense to copyright infringement will excuse behavior that would normally be considered copyright infringement. Fair use is a defense that a copyright defendant must plead and demonstrate to the court hearing the case. A court will review several factors when a defendant raises a fair use defense. Those factors are: 1) Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; 2) Nature of the copyrighted work; 3) Amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) Effect of the use upon the potential market for or value of the copyrighted work. It should be noted that “transformative” uses are more likely to be considered fair. Transformative uses are those that add something new, with a further purpose or different character, and do not substitute for the original use of the work.

In the case CHRONICLE BOOKS, LLC et al v. AUDIBLE, Inc., 19-cv-7913 (S.D.NY 2019) the defendant has raised a defense of fair use and it will be educational to watch how the court reviews the fair use factors. The plaintiffs in this case are book publishers. The plaintiffs consider each aspect of a book a separate piece of property to be licensed individually. For instance, hardcover books, softcover books, large print books, foreign language translations, and electronic books are all considered separate aspects of a single copyrighted work. The plaintiffs licensed the right to publish audio book versions of their copyrighted work to the defendant. The defendant operates a popular audio book service that allows customers to download and listen to their favorite books, read aloud.

Recently the defendant announced the launch of a new service Audible Captions. Audible Captions allows a user to read the text of an audio book while the audio book is played. The Audible Captions service would take the spoken words from an audio book, convert the speech to text as the audio is played, and then display the text on the screen of the user. The plaintiffs took exception to this service because the defendant had licensed the right to reproduce audio books, not e-books. The plaintiff sued for copyright infringement and requested an injunction preventing the launch of Audible Captions. The defendant has responded to the complaint with various defenses including that their use is a fair use.

The defendant argues that its use is transformative in the same way that recording a television broadcast to a VCR is transformative. Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429 (1984) is cited as precedent to support the assertion that Audible Captions is transformative. The purpose and character of the use is to enhance the experience of a user that has purchased an audio book. Audible Captions is a utility expanding use of an audio book, not a replacement for an eBook, asserts the defendant. With respect to the Nature of The Work the defendant asserts that this factor is neutral. For the third fair use factor, the amount and substantiality of the portion used, the defendant asserts that no more of the copyrighted work than necessary, is used to produce the captions which are displayed to the user. For the fourth fair use factor the defendant asserts that Audible Captions will have “no demonstrable effect upon the potential market for, or the value of, the copyrighted work” at issue, and, thus, it “need not be prohibited in order to protect the author’s incentive to create.”

Audible makes a strong argument that the Audible Captions product qualifies as a fair use. However, it will be up to the judge in the case to determine whether the defendant’s argument is persuasive.

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