Machine-generated content and copyright law will be under the microscope in a US dispute after a publishers’ association filed a complaint against an Amazon-owned audiobook producer, though some lawyers have criticised the “absurd” nature of the case.
On August 24 the Association of American Publishers (AAP) sought an injunction preventing Audible from rolling out a new service that provides machine-generated text to accompany recordings.
The service, called Audible Captions, would transcribe and display the text of narrated performances. Audible is authorised to distribute audio recordings but not text captions.
But the AAP says Audible has no authorisation and that there will be no guarantees of quality control.
Filed at the US District Court for the Southern District of New York, the AAP’s complaint says publishers often enter into separate agreements to prepare and sell e-books and audiobooks.
“The right to perform or distribute an audiobook does not automatically include the right to perform or distribute the book’s text, and vice versa,” it adds.
Paul Fakler, partner at Orrick Herrington & Sutcliffe in New York, says the case is another example of something that in a properly-functioning marketplace should be easily resolved.
“The notion that providing captioning of a very small amount of the book as it is being read will cause any material harm to e-book sales is absurd. What this is really all about is the publishers’ desire to make Audible (and therefore consumers) pay twice for the same book,” he says.
Evan Gourvitz, counsel at Ropes & Gray in New York, says Audible’s plan appears to be an odd reversal of the usual argument that owners of text works should make machine-generated audio versions freely available for visually impaired people.
“Here, Audible is reverse-engineering text works from their audio versions, which arguably compete with the text versions of those works.”
He adds: “If Audible were to prevail (and given Amazon’s market power) it arguably could collapse the market for digital audio and text versions of the same work into a single market. Audible could be seen as trying to appropriate a valuable right from publishers and authors.”
‘Error-ridden’
In a statement, the AAP said the text captions also risk an error rate that stands in stark contrast to the high-quality and carefully-proofed e-books that publishers produce.
The complaint says: “The distributed text is only as good as Audible’s transcription technology, which does not transcribe accurate text, making it especially error-ridden.”
It adds that Audible has admitted that up to 6% of generated text for an audiobook would contain errors – the equivalent of 18 pages of errors in a 300 page book.
David Gold, member at US firm Cole Schotz in New Jersey, says this is yet another example of technology moving faster than the US copyright regime can, or is willing, to accommodate.
“The laws and regulations governing copyrighted material were not drafted with these technologies in mind, nor could they have been, leaving the courts to fit the proverbial square peg into a round hole.
“Absent revisions and/or clarifications to existing law, it will be left to the courts to create a body of case law that will be the only meaningful guide for the use of these technologies going forward.”
But Fakler says the AI element may be a red herring.
He tells Managing IP that the “thorny” copyright questions around AI tend to be about either authorship (whether there is copyright when a machine creates a work) or the learning process itself, including whether the use of copyright-protected works in learning data sets without a licence constitutes infringement.
“This dispute does not appear to present these issues,” he says. “Here, the authorship is the literary text of the book. The technology merely transcribes that pre-existing work. Even if it makes a few mistakes due to the limitations of the technology, that does not change the fact that it is making copies of the text.”
He adds, however, that the collision of new technologies with copyright law and the “archaic business practices of content owners” has the potential to be significant.
“On the one hand, a correct result should turn on various facts specific to this particular situation. On the other hand, hard facts make bad law, and these cases often establish broad legal principles that cause havoc when applied to other cases down the road.”
A spokesperson for Audible says it is “surprised and disappointed” by the AAP’s actions and at any implication that it has not been speaking and working with publishers about the service.
“This feature would allow listeners to follow along with a few lines of machine-generated text as they listen to the audio performance. It is not and was never intended to be a book,” the spokesperson says.
Seven AAP members are named as plaintiffs—Chronicle Books, Hachette Book Group, HarperCollins Publishers, Macmillan Publishing Group, Penguin Random House, Scholastic, and Simon & Schuster.
International firm Kirkland & Ellis is representing the AAP.
