Home » Amazon, Audiobooks, Contracts » Someone Disagrees with PG – Again – The Sequel

Someone Disagrees with PG – Again – The Sequel

22 July 2019

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.

 

Amazon, Audiobooks, Contracts

62 Comments to “Someone Disagrees with PG – Again – The Sequel”

  1. Agreed. The indie publisher under the “public” contract language is just plain out of luck, so far as any kind of legal action is concerned. (Free country – they can complain about the ethics from now until eternity.)

    Thinking about BPH contracts, though… Of course, we can’t review those. But my suspicion is that there is some kind of “warranty of quality” in place of the blanket permission for Amazon to modify the supplied file. (On the missing reference – I wonder if that may have come from the “offer” contract they use with BPH – the default unless there is the modifying Section 3(a) that is the result of negotiation.)

    Additionally, since the “format” provision is exactly what BPH has been inserting into their contracts for many years now (h/t to Felix for noting the Harper Collins case), I would bet that the clause does not appear in their contracts (or is at least far more restrictive on Amazon).

    • I would bet it is.
      The BPHs would never dare think somebody might do to them as they do *their* suppliers. They might even accept the clause being “solely” for encoding and metadata. “It’s jusr boilerplate…”

      Those folks certainly aren’t terribly tech-savvy.

  2. Anonymous Nonlawyer Person

    With respect, I still think PG is wrong, at least based on the sections quoted.

    “Audiobook” is defined as the audio recording. The modifications they mention are all about audio. “Formats” in this context means audio formats, sound files. The captioning feature is a visual software feature that has nothing to do with modifying the audio recording. It would be like them generating images based on the audio and calling it Audible Picture Books. Granting them the right to modify the audio doesn’t mean they can AI-generate whatever derivative works they feel like.

    Or maybe it does, because they’re a trillion-dollar company and might makes right in our justice system.

    • You don’t understand what captions are. They are not independent of the audio. The caption text is a description of the audio, which is also how the FCC defines it (first line at the link). If you want to turn on the caption function on your TV, you will find the option listed in the audio menu. Give it a try.

      Images also have captions, the purpose of which is to describe the image. They’re bog standard in every given publication you can think of. If you’re on the web, a properly coded website has alt text on images, to serve the purpose of describing the image — which helps the blind or poorly sighted, who use screen readers. The audio captions are fulfilling the same purpose, except for the deaf or hard of hearing.

      By the way — KDP’s guidelines require that when you embed images, you include the alt text I mentioned above. The point is exactly the same with the web: to assist the blind.

      Have you heard of the 21st Century Communications and Video Accessbility Act? AKA, the CVAA if you want to search for it. I’m not sure how many links I can post, but the upshot is that as of 2010, communications and video devices must be accessible. I suspect that now that Audible has proven that audio can also be made accessible, the requirement for accessible audio will get added to the pile.

      Audible may be just a step ahead of the law. Your business plan should factor in the inevitability of audiobooks being required to have captions.

    • You’re absolutely entitled to disagree with me, WO.

      I take no offence.

      • ???

        I am always agreeable – except when I am not! In this case, though, I was in default mode. You perhaps confuse me with ANLP?*

        Separately, I also agree with you that the Harper Collins case was badly decided – where I am qualified to, on ethical grounds, mind you, and I defer to your expertise on whether it was properly decided in a contract law context.

        Ethically, the contract was made when the publisher and the author legitimately had different implied assumptions. At the time, ebooks were essentially non-existent, and a reasonable person would not have envisioned that the contract covered them. Hardback, paperback, trade format, large print, pop-up even – those might have been ethically interpreted as falling within the rights granted to Harper Collins. Non-print versions, not.

        Note, this is why you never ever think that something that is implied is ever going to work when a contract dispute arises. As you yourself, KKR, and a multiplicity of professional writers hammer – if it isn’t written, it isn’t real. Best to have an IP lawyer, too, to verify that what is written actually says what it seems to.

        * On the matter where I have been disagreeable lately – thank you for changing the “next page” back to what it was before.

    • Terrence OBrien

      Or maybe it does, because they’re a trillion-dollar company and might makes right in our justice system.

      Or maybe our legal system, precedents, and the meaning of legal terms are not well understood by many authors?

  3. I’m getting flashbacks to this:

    https://www.thepassivevoice.com/judge-rules-for-harpercollins-in-open-road-e-book-dispute/

    Audible is nowhere as tactful as even KDP so this looks to be pretty heavyhanced but illegal? Doubtful.

    If they werd processing the licensed audio file and distributing a text file adapted from it, I think they would be in questionable territory on “meeting of the minds” grounds. But they’re distributing a modified/enhanced audio file…

    Looking at it from the tech side, they’re just adding a new format to an existing product. Like adding KF8 or KFX to mobi on the ebook side.

    Looks like techies did the development, flds it by legal, and nobody touched base with supplidr relations before flipping it to PR.

    • Good connection, Felix.

      I disagreed with the judge’s decision in the Harper Collins case. I didn’t think the HC publishing contract included ebooks.

      Unfortunately, HC and Open Road settled the case after trial. As an uninvolved but interested spectator, I would have preferred a decision by the Court of Appeals to correct the trial judge’s incorrect assessment of the contract terms.

  4. Color me silly, and y’all know I’m not a lawyer, but how do captions constitute audio content? And if it’s an AI writing the captions in lieu of the author who originated the content, how is this not infringement on the copyright? The practice does transfer responsibility for interpreting the author’s intentions onto another entity.

    As far as section 2.2, I’d argue, were I the lawyer I am not, that nothing granting rights to an audiobook involves a grant of rights to any text production of the book whatsoever.

    Okay, back at me.

    • Deb – I can understand your reaction to this, but the Audible contract includes a broad description of what comprises an audiobook.

      Audible’s contract language anticipates future technology developments related to audiobooks and attempts to include those as well.

    • Try thinking in terms of products, not features.
      Captions are a feature of an audiobook, not a separate product.

      They aren’t selling ebooks; they’re still selling audiobooks. They’re just audiobooks with extra features and they are licensed to sell that. The text is just a feature that only some buyers will even use, it’s added value but not core to the product.

      Selling a car with GPS features isn’t the same as selling a standalone pocket GPS. Is nothing else, because nobody will buy a car just for GPS. Plus the GPS in the car isn’t a one for one replacement for a pocket GPR, which can be used in places cars can’t go. GPS adds value to tbe car but it’s not essential.

      When you buy the ebook you buy the text, TTS is just an added value feature and optional.
      When you buy the audiobook you buy the narration, captions are likewise and added value feature and optional.

      They’re still different products.

    • Terrence OBrien

      The practice does transfer responsibility for interpreting the author’s intentions onto another entity.

      That’s why we have contracts. Then we don’t have to spend a lot of time determining Audible’s intent.

  5. Dang you PG! If I’d known you’d spell it out the next day I could of bought the smaller box of popcorn! 😛

    ( 😉 )

  6. FYI for PG: On the main page, the “last comments made list” is not updating. I thought my comments above hadn’t posted, because the comment count hadn’t updated for this thread, nor did the widget on the side.

    Not urgent! Just an FYI, in case you’re testing something.

    • Thanks for letting me know, Jamie.

      The Last Comments box is fed via a plugin. Perhaps that’s the issue.

  7. Captioning is part of a larger trend: Video Captioning and Audio Transcription Trends to Watch in 2019.

    Excerpts:

    Small business, government organizations, universities and corporations alike … video is critical to growth and captioning is imperative to making video successful. Many organizations are required to caption videos … Captioning is now being added as a line in the budget to make sure it is done in a cost-effective, intentional way.

    The article mentions that captioning is becoming useful for social media. Relevant part for writers:

    Another exciting development showcases all the new ways people are finding to repurpose their video or audio transcript to make new content – such as ebooks, webinars or events, blogs, memes, checklists or infographics, podcasts, and even new videos.

    Emphasis mine. You already have your ebooks, and it seems to me it would be worth it to ensure that the captions used for the audiobooks come from you, and not from whatever machine Audible might be using. It would be worth it to make sure Audible can’t strip off the captions for some other purpose, such as promotions and the like, without your permission.

    I don’t think it will be worth it to fight captions in themselves. They’re an accessibility feature, and accessibility is huge. I do not anticipate that in the near-future, authors will be legally able to resist having captions on their audiobooks. From a public relations standpoint, and a commercial standpoint, resistance to captions also seems career-limiting.

    In the other thread I gave an example of how captions describe audio. Turn on your TV and see for yourself:

    ~If ominous soundtrack music is playing in a scene, the caption will say, “ominous music playing.”

    ~If a dog barks, it will say, “dog barking.” And if the dog is growling, “dog growls menacingly.”

    ~Heavy footsteps, glass breaking, a car engine revving, all of that is mentioned in the captions.

    Again, they are descriptions of audio. They are defined by the FCC in that fashion (link in earlier post above), not as text.

    Plan around the existence of captions on audibooks, and factor them into your business plans accordingly 🙂

    • If audible were using an ebook edition (or even scanning a pbook) there might be an argument about licensing the text.
      But the text is coming *from* the audio. And going out solely *with* the audio.

      Tech changes daily.
      The world changes with it.
      We need to track those changes and maybe even anticipate them to avoid getting blindsided.

      Hint: check manuscript terms and how they apply to user-generated audio. As TTS improves there willbe a tipping point, in maybe 10-15 years, when TTS and human narration will be well-nigh interchangeable. Once it is possible, it will be done. Best if by the author and not the publisher.

      • Make that *file-generated* audio.

        (Transcription tech is getting really, really good.)

        • I hope Amazon’s Audible transcription works better than Alexa or they’re going to need a lot of human man-hours to fix these. I asked my new TV for “The Who” yesterday and got a response about some emperor from the Hu dynasty.

          • Well, the television has been called the “idiot box” ever since it became a real consumer product. Now we can say “the box that is an idiot.”

            Of course, it’s not the poor TV’s fault – any idiocy generated by its use is the fault of the user, and any idiocy provided by it is the fault of the search engine. (Note that you can easily use a television in a non-idiotic way – search engines, the mileage varies.)

      • If audible were using an ebook edition (or even scanning a pbook) there might be an argument about licensing the text.

        Good point. In that case, I amend mine to say that authors should insist on retaining quality control (QC), in case the transcript gives a typo, or garbled mess like you get with a lot of YouTube vlogs.

        However good the transcription tech gets, I’d be worried about how it renders fantasy-type names and words. Think “Aragorn” or “Daenerys” or “mithril,” and so on. An author might instead submit a stylesheet or something to ensure that whatever the transcript thinks it heard, the words/names are transcribed correctly.

        ETA — an author might not even need to fight for QC, because the FCC already requires that captions have to be accurate. In the end, I don’t think this is going to harm authors, so long as Audible is unable to do anything other than its stated purpose with the captions.

        • Oddball names are an issue that requires human intervention, via exception lists. It is manageable, though, since gbdy tend to repeat through a book. I gave it a try on the FBREADER TTS+ module and managed a good fix right away with a short substitution list.

          A tool identifying waveform snippets that need special treatment shouldn’t be hard to automate by flagging words that don’t make contextual sense.

          (BTW, have you runinto YouTube vlogs that use TTS narration? I’ve run into a couple of series that use the same voice.)

          • I haven’t encountered YouTube’s TTS. The one occasion I ever deliberately used TTS was when I was proofing two versions of a text. It was simpler to use the TTS option in the Adobe PDF than to use a split screen between documents.

            TTS does have a way to go, and I’m keeping an eye on it. I was amused by the fact that the PDF interpreted “grrr” as “growling” — which is what the creature was doing in that scene — but it couldn’t process characters saying “shhh” or “hmmm.” It just spelled out those words.

            • This isn’t YOUTUBE tech but rather a vlog using offline TTS to read out a post for youtube. Decent enough but it’s clearly a computer.

              They’re scattered here and there. Haven’t been served one lately but they typically cover tech or military subjects.

              Like this: https://m.youtube.com/watch?v=QYdFICvDKjo

  8. Another point to bear in mind: Audible isn’t doing this to harm suppliers. But they are going to hurt competitors, most of which rely on the mp3 format or CDs. They’ll have to either move to another format or another playback app or both.

    Apple will have little problem doing audiobook captions but other vendors? It’ll be bad enough if it only turns out to be a competitive advantage for Audible but it becomes a legal requirement…

    • Terrence OBrien

      Audible isn’t doing this to harm suppliers. But they are going to hurt competitors, most of which rely on the mp3 format or CDs.

      Exactly. If it works, increased sales and market share means more money for authors and Audible. If Audible moves quickly, competitors may not be able to respond.

      It might be instructive to ask if the existing system of specific rights for various formats works with the new system and tech that has emerged. Might we see a situation where one set of authors signs more flexible contracts giving them a competitive advantage over those holding to the existing system?

  9. As it happens, I’m listening to an audiobook about the history of US relations with Native Americans beginning in colonial times. It’s actually lectures from The Teaching Co., and they are delivered from the N.A. perspective. Spoiler: no matter what the treaty says, the white man gets the land. I suspect this principle applies here.

  10. I have five novels on Audible. I personally don’t have a problem with this, but I don’t understand it. Wouldn’t the ‘PRINT BOOK’ be superior to an audible book with ‘CAPTIONS?’ Also, ‘captions’ sounds like a condensed ‘condensed version’ of a book.

    • Note that Audible has been offering this in the context of schools, and they’re using public domain books. As in: Classics kids are required to read.

      I suggested in the last thread that dyslexics are the perfect customers for captioned audio, as they may prefer audiobooks as opposed to print. And — this is key — like the rest of us, dyslexics may also have trouble catching what they heard. “Did I hear that right?” asked everyone who can hear 🙂

      Harvard and MIT and other universities have already been sued because their educational videos didn’t have closed captions for the deaf, and Kindle DX was eliminated because it was also inaccesible. Schools are not allowed to be “inaccessible” to the blind or deaf. The FCC won’t allow video and other communication devices to be inaccessible. For a few years now the Kindle app has had a dyslexic font option … you see where this is going?

      Sighted, blind, deaf, hearing: Capture all the audience! Leave no fan behind 🙂

      ETA: I don’t believe they’re going to be “condensed” as in Reader’s Digest, but just not something you can scroll through as if it were a book. Consider that captions can also make audio searchable in your audiobook.

  11. Thanks for the update, PG. I agree with your assessment, I suppose, at least enough to decide against using Audible.

    Not that I suspect one guy crossing his arms over his chest will make the slightest bit of difference. Then again, selling my books through audible wouldn’t affect my bottom line that much, either.

    In a perfect world, upright would not be a matter of degree and contracts would be used to protect the honest against the dishonest. But we live here, now, so… (yawn, stretch).

  12. My hearing is fine, but about five minutes into watching The Big Short, I turned on the captions. Doing so significantly improved my comprehension of the dialogue.

  13. There’s enough definition wiggle room for either side of the legal argument to bring this to court. The real question is whether these rights are financially worth fighting over. In the case of the Kindle text-to-speech controversy, the answer for Amazon was no because several groups of authors and publishers were willing to take it to court. Amazon couldn’t justify the legal costs in comparison to what they would earn. Will these same groups be willing to fight this in the court system? If yes, then Amazon wil back down since captioning has even less value than text-to-speech.

    • Not if it hurt/kills mp3 audiobooks.
      Big competitive advantage.
      Nasty way to go about it but big business isn’t for the faint of heart.

      Be careful, though: Don’t get too hung up on the Amazon umbrella. It’s not 2012 anymore and Audible isn’t run by the same guys that run KDP. Amazon is a federation of independent units.

    • then Amazon wil back down since captioning has even less value than text-to-speech.

      Not if captioning falls under accessibility laws, which they likely will. In which case, I don’t see a legal ground for authors to stand on in opposing it. Amazon has already implemented several features and rules with Kindle that fall under “accessibility.” I’m skeptical these captions won’t fall under that same umbrella.

      If you’re legally required to have captions, just as you are with other media — they even appear in video games — then boycotting Audible won’t do you any good. All of their competitors would also have to the captions, too. Then the real issue would be whether you’re willing to forego a particular market (audiobooks) rather than a particular publisher (Audible).

      • One problem. Audiobooks have another version for those who are hard of hearing. It’s called a book.

        • Terrence OBrien

          And the front door of a store has another entry for those in wheel chars? It’s out back and called a loading dock.

          I’m not sure these defenses will hold up too well.

        • TV also has a substitute: a book! I cheerfully exercise that substitute all the time. I even spent a few years without a TV. The FCC; however, is not impressed by that alternative, and insists on captioning. This is because captions are not an alternative to books.

          You are ignoring the FCC’s regulatory definition of what captioning is. I linked to it above. Check it out. And then ponder that Harvard — which has access to Harvard-bred lawyers — was still required to add captions to their education videos. Harvard et al could also flippantly claim that the deaf could just read the textbooks, and yet, the videos are still required to be accessible. Kindle DX died because it wasn’t accessible to the blind. Observe who sued Princeton, and why, at that link. Observe that the DOJ was involved because it’s their job to enforce portions of the Americans with Disabilities Act. Remember that audio captions are currently being rolled out to schools, which are government organizations, and aren’t exempt from the requirement to be accessible.

          What is accessibility? Several of you seem confused on this point, so: Accessibility is not about whether an alternative media exists. Accessibility is about whether the medium in question can be used by the disabled. That’s why you have a dyslexic font on your Kindle app. Dyslexics could “just” read the book in print, or “just” listen to audiobooks, but the Kindle is made accessible to them. That’s what the regulations insist on. Ponder that.

          Per the FCC, books are moot as an alternative to captions, because books have nothing to do with the audio/visual medium. Per the CVAA (linked above) here is a another text to ponder:

          Expands the requirement for video programming equipment (equipment that shows TV programs) to be capable of displaying closed captions, to devices with screens smaller than 13 inches (e.g., portable TVs, laptops, smart phones), and requires these devices to be able to pass through video descriptions and emergency information that is accessible to people who are blind or visually impaired, if technically feasible and achievable.

          Emphasis mine. People listen to audiobooks on their smart phones. Are you confident that Audible can claim exemption for accessibility just because they’re not a video? Even though their audio captions meet the “technically feasible and achievable” component of the requirement?

          The CVAA was passed in 2010, and the whole point is 21st century accessibility (it’s in the name) for the deaf and blind. Even video games have been made accessible. I haven’t played one in the last 20 years that didn’t have captions for the audio. I notice video game designers also make a point of not being hostile to the color blind by creating “modes” that cater to the different forms of colorblindness.

          Regulatory and legal trends are against you on this. Therefore, your alternative as an IP creator is to either accept that future IP that is A/V (audio / video) in nature will be subject to the same rules as the other A/V IP: it must be accessible. Or, just don’t license your story as a movie, TV show, video game, and now as it appears, audiobooks.

          The idea that authors will be exempt from accessibility requirements if they license IP in multimedia formats is not the safe bet. Plan accordingly.

        • Except that not all audio books are also written books. There are a whole slew of Audio First books coming out. And many audiobooks are not word-for-word adaptations of written books. They have been adapted to clarify things in the audio context. There are also Graphic Audio books, and condensed audio books — neither of which have ebook or paper book equivalents.

          There is a whole world of publishing out there beyond the traditional Trade.

  14. I can’t speak to the rights aspect of this, so I’ll add my 2 cents suspicion that this is a feature that few people will use.

    This is not a matter of “I don’t read audiobooks so why would anyone else?” I’m finding it hard to believe that there’s a bigger chance someone would choose an audiobook because it has captions.

    My wife and I watch movies at home with the captions turned on (this proved especially useful watching “The Full Monty,” which I believe offered “American English” and “English English” as the caption options).

    But if I want to read a book, wouldn’t I buy the cheaper book and read it on my phone? If I want to listen to a book, and most of the time that’s because I’m walking or driving, the last thing I’d want is to read captions. Even if I’m laying on the couch, the reason why I’m listening is because I don’t want to read.

    And if the captions are auto-generated, how are they going to handle complicated names in the science-fiction/fantasy realm?

    Also, there’s the reader experience to consider. The captions are tied to the audiobook’s pace, and are displayed about three lines on the screen. I read much faster than that.

    So if it’s not a feature that’s going to be used a lot, I doubt it’s going to be a draw.

    I just wish the Zon’s programmers would focus more on making the site’s search function return the results you’re asking for. Talk about an indifferent customer experience.

    • Terrence OBrien

      I just wish the Zon’s programmers would focus more on making the site’s search function return the results you’re asking for.

      I suspect they are focusing very hard on returning the results Amazon wants you to see.

    • Dyslexia can be a life-crippling disability. It’s gotten better in the US as schools are improving recognizing it and teaching to it vs routing non-readers into the same classes and those with cognitive impairments, but it used to be the case that many intelligent and capable people would feign the ability to read and be ashamed of their dyslexia. Captioned audio can be very helpful in improving reading ability.

    • I don’t know that any one is reading the captions as they would a book. The captions aid clarity in what you heard, which is the purpose you yourself used them for when watching “The Full Monty.”

      People who have trouble reading long texts, such as dyslexics, listen to audio. I doubt they’d have any trouble reading short bursts of captions, because they’d likely be using them for the same reason you use them, to understand the words they’ve heard.

      With TV captions, a character who talks like Boomhauer from King of the Hill (53 seconds in) is a perfect use-case for the concept. The captions prove he isn’t speaking gibberish. Now, imagine a narrative character speaking “dialect” — Mark Twain — or referring to a “ghola” or “librarium” — Frank Herbert and Jack Vance respectively — are you positive you wouldn’t check the captions to make sure you heard those words correctly?

    • Maybe this falls in the “few people” category, but my family and I listen to audiobooks the way I used to lay on my living room floor and listen to radio dramas and stories on records as a boy.

      I’m listening to the Dresden Files with my older kids right now, and the Veronica Mars books on Audio with my wife. We aren’t doing anything else (ok, we are frequently ALSO on our devices), just sitting in the living room, or the kitchen, listening.

      I would find captioning extremely useful and helpful on the Audible app on my Fire TV or XBOX One, or Echo Show, etc. Especially when listening at higher speeds.

      And this doesn’t even include multicast performance audiobooks, like Graphic Audio, which are shorter and condensed. The captioning would be extremely helpful in those situations.

  15. I’m not a lawyer like PG, but I have worked with corporate legal departments for many years. I’d say that Audible’s lawyers did their work well. My guess is that Captions is covered. Whether it it is a commercially successful venture remains to be seen. I think, as an author, I will avoid signing the Audible contract until it becomes clear that Captions benefits me.

  16. Richard Hershberger

    We are burying the lede here. Stipulating to PG’s legal analysis (which I expect is correct), what we have here is a right that some authors (based on the previous comments thread) value separately from other audio rights, and which MegaCorp with its MegaCorp lawyers have snuck, as a hidden time bomb, into their take-it-or-leave-it contract.

    Now suppose that the MegaCorp in question were someone other than Amazon. Barnes & Noble, say. What would the response here be?

    Here is my usual rote recitation: Amazon is not your friend. Neither is it your enemy. You and I rise nowhere near high enough to rate such notice. We are bugs in an elephant’s path. We might be able to jump on and get a ride. The elephant might pass us by entirely. The elephant might stomp on us. Regardless, the elephant won’t care, or even notice. If your business model includes “Rely on Amazon” then it is strictly temporary, and unpredictably so. Amazon will make some change that ruins your model. It might happen tomorrow. It might happen five years from now. But it will happen: not because Amazon hates you, but because they don’t care. If you can jump on for a ride, great! Ride it for as long as you can. But know that it is temporary and unpredictable. Plan accordingly.

    • “Amazon will make some change that ruins your model. It might happen tomorrow. It might happen five years from now. But it will happen: not because Amazon hates you, but because they don’t care. If you can jump on for a ride, great! Ride it for as long as you can. But know that it is temporary and unpredictable. Plan accordingly. ”

      That has much broader application.
      Substitute Amazon for any tool or resource.
      Permanence is an illusion.
      (Main reason why life of copyright contracts are a bad idea.)

      The tech world is littered with the corpses of companies that flourished exploiting a given technology or limitation (say pocket organizers or the 640KB limit) only to be wiped out as the world moved on. eink Readers will some day be superseded. Relatively soon, too.

      Tomorrow will not be today with a different calendar on the wall.

    • Terrence OBrien

      If your business model includes “Rely on Amazon” then it is strictly temporary

      If your business model includes “Rely on XYZ” then it is strictly temporary. Everything in markets is temporary.

      Markets exist to facilitate trade. That means they change all the time. Amazon, Apple, bricks and mortar,and XYZ are all markets, and they all change.

      The idea that something is immune from change doesn’t have a very good track record.

      • Just ask Word Perfect or WingZ.

        Spent years porting the same product all over during which time Microsoft leapfrogged them by focusing on the emerging Mac and Windows.

        Or Palm, so focused on protecting the organizer market from Microsoft they never saw Apple turning organizers into just a feature of phones.

        At any point in time, somebody somewhere is working to change the world. Blink and you’ll be left behind. It’s a Red Queen’s race.

        • Obligatory “Word Prefect is still a thing, and you can get it” comment… carry on.

  17. > all formats

    A few decades ago someone posted part of a book license on BIX, with the comment, “technically, this means I’m not allowed to remember it if I read it.”

    I’ve seen a few others like that other the years…

  18. This has been an interesting read. I hadn’t seen anything about this on a couple of the writers’ forums I keep an eye on.

    I think there are two issues, for me. The first is the fact that Audible does seem to me (as to many of us) to be grabbing rights that aren’t explicitly granted. Some people say that captions are a feature of the audiobook, except that audiobooks have not had captions as a usual thing before, and I don’t think it’s really comparable to TV/movies or to songs. I think it’s at least something that should be clarified in the agreement and opted into by the publishers/authors before going forward. The fact that Audible unilaterally decided that their interpretation of the agreement was that it included these rights and therefore they had no need to discuss with or further compensate the publishers–when it’s pretty clear that most publishers didn’t consider captions when they signed these agreements–is highly concerning. This is, IMO, an example of Amazon/Audible doing what it wants and daring suppliers to fight back.

    The second issue is whether this will actually have an effect on the industry. Personally, I doubt it. Most people, I think, tend to either read a book or listen to an audiobook. My dad listens to audiobooks exclusively because his eyes don’t let him read for long periods. My mom listens to audiobooks almost exclusively because I think she just enjoys it and somehow finds time to sit and listen to an audiobook when she wouldn’t sit and read a book (I think it’s less work, and that’s why she does it). I read and listen, but when I listen it’s usually because A) a good narrator brings things to a story that are worthwhile, and/or B) I listen when I’m doing other things where I can’t read a book (while driving, working out, etc.). I don’t think any of us would think, “I won’t buy the ebook/paper book because I can just read the captions on the audiobook.” And since audiobooks are usually a lot more expensive than other formats, it seems like people who prefer to read wouldn’t buy the audiobook for that among other reasons.

    I see people using this as a helper for the reasons people have already stated, or to check if they heard a word right, or something like that. I really don’t think the number of people who are going to make buying decisions based on this feature are large enough to cripple other audiobook retailers. I don’t think this feature will be in such high demand that other retailers will have to do it or risk going under. I really doubt any lawmakers would side with Amazon and consider this an ADA thing when the written book is usually both widely available and much cheaper. (I hope I’m not wrong there, but legislators do asinine things sometimes.)

    So while I don’t think this particular feature is going to be significant enough to a significant enough number of people to make much of a difference any way in the overall industry, as a sign of Amazon’s continuing willingness and desire to do whatever they want and dare their “business partners” (in quotes because Amazon clearly sees us more as servants/supplicants) to do something about it–especially when it involves contracts that a lot of people are already locked into–it really concerns me. THAT is what makes me question whether I’ll want to go with Audible or ACX for future audiobooks. (That, and a number of other things they’ve already done or are doing.)

  19. From a software architect’s viewpoint, Audible is not surreptitiously offering copyrighted text. If they were taking copyrighted text and synchronizing it with audio, I, not speaking as legal expert but as a software architect, would call that copyright infringement and an unwarranted grab.

    But Audible is, as far as I can tell, not doing that. They are translating the audio track into text, which is architecturally a different animal and a new format for the audio track, which is covered in the Audible contract.

    To me, this is another example of the odd things that happen when computing power is abundant and cheap. It’s similar to data that used to be anonymous now being easily traced to individuals.

    • It’s just another way of rendering the data encoded in the file; it could be converted to mp3, light, an oscilloscope waveform, braille, or text.

      Different encoding, same data.
      One thing KKR has been harping on is be explicit in limiting what you license. Assume nothing.

      I expect we’ll be doing this in the opposite direction when TTS tech gets context variable intonation otherwise.

      • I disagree that an audio track is the “same data” as text, but I heartily agree that the Audible contract, with its all future formats language, is not something I would readily sign.

        • Same data? No. One is a performance.

          • Who is performing?
            The file is the same information regardless of the format. An mp3 converts the audio to compress it but the output is the same. Running it through a wave analyzer or a Braille converter ditto.

            No external data added: data out is data in.

            They are taking licensed data, deriving a second stream, bundling them, and delivering it as one. Same as making faux stereo out of mono or processing a studio track. Studios do it daily and nobody calls it a performance. It’s just reformatting.

            The output is still an audiobook, as licensed.

            If they only sold the text, as a distinct product, they would be in trouble. But what they are distributing is an enhanced and reformatted audio file. No different than adding chapter marks and metadata.

            It’s all processing the licensed product.

            • Who is performing?

              The guy reading the book.

              And a stage production of Hamlet is just a reformatting of the manuscript. Nobody calls it a performance. The output is still a play.

              The difference has nothing to do with rights, sales, or licenses.

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