A federal judge has once again declined to sign off on the final order settling the copyright litigation over Audible’s Captions program, holding out for more public transparency over the settlement's terms.
In a brief order this week, Judge Valerie Caproni said the plaintiff publishers and Audible could redact the final payment amounts agreed to under a final settlement agreement, which was filed under seal earlier this month. She reiterated her position, however, that if the parties want the court to retain jurisdiction over the entire settlement, more details must be made public, including who is being paid, the method and timing of payments, and other details contained in paragraph 3, as well details in paragraph 11 of the agreement which, Caproni held, does "not appear to contain any sensitive information.”
In a previous order, on February 12, Caproni denied the parties' application to file the final settlement agreement under seal, and ordered the parties to submit suggested redactions, along with explanations for those redactions. “The public has a presumptive right to judicial documents,” Caproni wrote in that order.
Apparently not satisfied with the parties' explanations, Caproni has now given them until March 4 to choose between two options:
Option one: the parties can refile the settlement on the public docket with only the settlement amounts redacted, “in which case the Court will approve the parties’ proposed injunction order and retain enforcement jurisdiction over the entirety of the settlement agreement.”
Or, option two: the parties can go ahead and redact “the entirety of paragraph 3 and a portion of paragraph 11 as proposed,” and file the redacted settlement agreement on the public docket, in which case the Court would enter the agreed upon final injunction, but not retain enforcement jurisdiction over the terms in the settlement's redacted paragraphs.
As the underlying copyright action has already been dismissed, an order retaining jurisdiction over the settlement would be necessary for the court to enforce some settlement terms beyond the injunction agreed to by the parties, which covers only the seven plaintiff publishers. In addition to apparently including payments of some kind, AAP officials say the related settlement agreement extends protections to all AAP members in good standing.
Meanwhile, in a response to a letter from Independent Book Publishers Association (IBPA) executive director Angela Bole, Audible this week confirmed for IBPA what PW reported when the settlement was first filed: that Audible has decided it will get permission from any rightsholder before including their work in the Captions program, not just AAP members.
“As we have publicly stated, we decided to obtain permission from all publishers (including AAP and non-AAP members) before moving forward with enabling Audible Captions for titles not in the public domain,” wrote Stas Zakharenao, Head of Legal for Audible, in response to Bole. “However, we will not be entering into any other agreements regarding the resolution of the lawsuit.”
At the time of the settlement, an Audible spokesperson also told PW that that Audible has no plans to expand the Captions program beyond its current public domain pilot program.
Audible’s response comes after Bole had requested that Audible “formalize its intention” not to include any copyrighted works in the Captions program without permission, regardless of whether the creator of the work is an AAP member.
“While it is helpful to AAP that Audible has agreed not to use its members’ content in the Captions program, IBPA’s 3,207 members would like reassurance that their copyrighted works also won’t be used without permission,” Bole wrote.
While a formal agreement with Audible is apparently not in the offing, a postscript on the IBPA website informs members that “Audible has decided to obtain permission from ALL publishers, not just AAP publishers, before moving a book into the Captions Program,” adding that “the industry should get a look at the complete settlement agreement sometime soon.”
