For background on this post, see Amazon’s Upcoming Audible Captions Feature = Unhappy Publishers, and Someone Disagrees with PG – Again. And do read the many excellent comments to each post.
So Audible has stepped into a hornet’s nest with its plan to provide audiobooks with captions. PG has stepped into a related hornet’s nest by saying he thinks it’s a good idea. The hornets claim it is an unauthorized rights grab by Audible.
PG says, “Let’s look at the contract.”
PG has no access to contracts between Audible and major publishers. However, all the world has access to Audible’s Audiobook License and Distribution Agreement which is available to indie authors and publishers of all sizes and shapes. The agreement includes a notation that it was last revised on June 1, 2017. The version PG will refer to has been downloaded today.
The license uses the term, Audiobook frequently. In the second paragraph of the Agreement (unnumbered) we see a definition of the term as it will be used in the Agreement:
the audio recording of the book(s) you have identified on ACX for the grant of distribution rights (any such audio recording as submitted by you or as modified pursuant Section 3(a) below, an “Audiobook“)
[Begin PG aggravated monologue]
There is no Section 3(a).
PG suspects that, at some point, perhaps the last revision, some sort of legal stylist played with the contract, formatting it in a font with Audible’s corporate orange and changing the numbering scheme, and nobody in legal carefully reviewed the modified piece of art for designer-caused errors.
In PG’s superlatively humble opinion, contracts should present a boring appearance. Font stylists and brand experts should be kept far away from contracts, online and otherwise.
Additionally, the last person to review contract language should be an attorney and one of the tasks of that person is to always, always, always check each and every cross-reference in the contract. PG understands that you didn’t go to Harvard Law School to check cross-references, but an error in a cross-reference could be disastrous.
[End PG aggravated monologue]
Generally speaking, when a court construes a contract, rather than adopting a view which converts a portion of the contract into a nullity, the court will attempt to determine what the contract draftsperson was trying to accomplish.
In this case, PG thinks the reference to Section 3(a) originally was a reference to what, in the restyled agreement is currently Section 4.1.
Right to Edit. Audible may modify, reformat, encode, adapt and edit the Audiobook to make the Audiobook compatible with the Audible service, including but not limited to by (a) adding Audible’s standard intro and outro, and (b) removing flaws or audio elements that are, in Audible’s judgment, incompatible or inconsistent with the Audible service (e.g., playback instructions, microphone bumps, distortion, ambient sound, etc.).
Even if a judge determines that the reference to 3(a) is a nullity, Section 4.1 is still part of the agreement and grants Audible the extensive rights described therein. The section 3(a) reference would have clarified that the defined term, Audiobook, included products arising under Audible’s Right to Edit provision.
End of all of PG’s nittery-pickery, let’s get back to whether Audible is permitted to create captioned audiobooks or not.
Again, on the first page of the contract, we find Section 2.1.:
You grant Audible the exclusive license to use, reproduce, display, market, sell and distribute the Audiobook throughout the Territory in all formats now known or hereafter invented from the date you accept this Agreement until the date that is 7 years from such date (such 7 year period, the “Initial Distribution Period”). [emphasis supplied by PG]
Section 2.1 covers audiobook licenses by which the author/owner grants Audible exclusive audiobook rights. Section 2.2 covers non-exclusive audiobook licenses granted to Audible:
You grant Audible the non-exclusive license to use, reproduce, display, market, sell and distribute the Audiobook throughout the Territory in all formats now known or hereafter invented from the date you accept this Agreement until the date that is 7 years from such date (such 7 year period, the “Initial Distribution Period”). [emphasis again supplied by PG]
Alert readers will note that the other than the change from an exclusive to a non-exclusive license, the wording is identical.
So, where does the “rights grab” accusation leveled at captioned audiobooks end up after considering the quoted provisions?
Is a captioned audiobook a form of audiobook that was either known at the time the author signed the contract or invented after the author signed the contract?
PG thinks the answer to this question is affirmative.
Is a captioned audiobook something other than an audiobook, some sort of ebook with sound hybrid? Perhaps, but PG thinks it’s hard to make a persuasive argument that escapes the contract language discussed.
Section 4.1 grants Audible the right to modify, reformat, encode, adapt and edit the Audiobook to make the Audiobook compatible with the Audible service.
Is Audible “modifying, reformatting, encoding, adapting and editing” the original audiobook to create a captioned audiobook?
PG thinks the answer to this question is affirmative.
If Audible is going to offer a captioned audiobook as part of a new or improved Audible service, PG suggests that part of Section 4.1 is satisfied.
PG will note that Section 10 does include the following language: “All rights in the Audiobook not granted in this Agreement to Audible are expressly reserved by you.”
However, if the contract grants rights all audio formats “all formats now known or hereafter invented” and also permits Audible to “modify, reformat, encode, adapt and edit the Audiobook” for its new captioned audiobook offering, PG suggests the Audible authors have granted Audible that right.