[fjtorres]

Originally Posted by DNSB

And once again, Gideon J. Tucker is proved correct when he wrote: "No man's life, liberty or property are safe while the Legislature is in session."

BTW, how exactly is "undue burden" defined? Are they using the US Supreme Court's definition dating back to the 19th century? Please note that that definition prevents the legislature from passing a law that will create an undue burden. Going by that usage, if a court ruled that the ADA created an undue burden, the ADA would be held to be unconstitutional and, hence, invalid.

Hmmm.... I do remember one friend of mine getting a chuckle when his neighbour in Texas obtained a rifle and a hunting license despite being well past the requirements for legal blindness (he uses a bioptic telescope to watch television).

Who know what evil lurks in the hearts of politicians?

In this case, it would seem "undue burden" is taken to mean "you can no longer make a profit".

(Auto emission requirements raise car makers costs but they simply raise prices so profitability isn't impacted. Audible isn't charging more for captioned files so whatever costs they incur don't seem to impact profitability enough to raise prices/matter. So, not unduly burdensome?)

Here, try this. The catfight is amping up:

https://arstechnica.com/tech-policy/...-text-feature/

(Aside: Audible is exempting the files of those suing from captioning until the court rules. Until then, other publishers' files will be listed as captioned. We'll see if it impacts sales or not.)

The publishers argue that this is straight-up copyright infringement. In their view, the law gives them the right to control the distribution of their books in different formats. Audio is a different format from text, they reason, so Audible needs a separate license.

This would be a slam-dunk argument if Audible were generating PDFs of entire books and distributing them to customers alongside the audio files. But what Audible is actually doing is subtly different—in a way that could provide the company with firm legal ground to stand on.

The caption feature "is not and was never intended to be a book," Audible explained in an online statement following the lawsuit. "Listeners cannot read at their own pace or flip through pages as they could with a print book or eBook." Instead, the purpose is to allow "listeners to follow along with a few lines of machine-generated text as they listen to the audio performance."

So it seems that the Audible app is generating text captions in realtime as the user plays an audio file. The app sends snippets of audio files to an Amazon server and gets back corresponding sections of text, which it then displays on the screen one word at a time. (It's possible that AWS Transcribe has an offline mode that allows the transcription to happen on-device, but I haven't found any documentation about this. I've asked Audible about this and will update if they respond.)

Audible is likely doing this because it strengthens the company's argument that it can do this without a license from publishers.

To see why, it's helpful to review two of the most important copyright decisions of the modern era. The first was the 1984 decision of Sony v. Universal that declared the VCR legal. Hollywood argued that the "record" button on a VCR was an invitation for customers to infringe their copyrights. But the Supreme Court disagreed, arguing that copyright's fair use doctrine allowed "time shifting"—recording a show now to play it later.

The courts built on this decision with a 2008 ruling known as Cartoon Network v. Cablevision. In that case, a bunch of media companies sued the cable company Cablevision because it was offering customers a "remote DVR." Like a conventional DVR (or a VCR before that), Cablevision's technology allowed customers to record and play back television shows at their convenience. But unlike a conventional DVR, the remote DVR was located in a Cablevision data center, not in the customer's home.

Television content owners argued that Cablevision was infringing their copyrights by making unauthorized copies of their show on a massive scale. Cablevision disagreed, arguing that the copies were being made by customers, not by Cablevision. The physical DVR might be owned and maintained by Cablevision, but the customer was deciding which shows to record. And the customer was entitled to do that under the earlier Sony ruling. An appeals court ultimately accepted this argument.

The Cablevision ruling provided a legal foundation for cloud-based "storage locker" services that allowed customers to upload, save, and stream (but not share) their music and video collections.

Audible might not even need the accessibility defense.

The cited cloud storage lawsuit:

https://arstechnica.com/tech-policy/...layer-illegal/

Amazon, et al, won that one without directly fighting:

https://www.wired.com/2011/08/cloudm...s-not-a-crime/

That design decision seemed to be in keeping with a decision in the Cablevision case, where the Second Circuit Appeals Court ruled that the cable company's DVR in the cloud was legal only because every user who told the service to record a given show got their own copy of the show made.

By contrast, Apple's new cloud-music service – created with the blessing of the big labels, only uploads the songs it doesn't know – and uses master files. In fact, if a customer has a low-quality copy of a song from one of those labels, Apple will automatically upgrade the song to a better one.

But Judge William H. Pauley III in this case said that MP3tunes' system complies with that ruling.

"Importantly, the system preserves the exact digital copy of each song uploaded to MP3tunes.com," Pauley ruled. "Thus, there is no "master copy" of any of EMI's songs stored on MP3tunes' computer servers."

So, adding it up, it is legal for *consumers* to ask the remote service for the captions (under Cablevison) *and* further, it would be legal for the service to save the captions generated by the first request to serve all future requests.

So the only costs to the audiobook vendor would be tbe conversion, the file storage afterwards, and the snippet streaming. (Theoretically, the whole converted file could be downloaded for offline playback, and still be legal.)

That doesn't seem to be an undue burden.
Those are minimum costs, of course, if Audible requires always-on internet for solely on-the-fly captions the costs will be higher but not too much more. AWS services are cheap.

Of note, the publishers aren't suing over *how* the captions are produced, only that they are. And that seems to require only a Cablevision defense so the MP3tunes cloud precedent is frosting.

They really needed to do deeper research before suing...