By Isaiah Poritz
The lyric annotation website Genius is asking the US Supreme Court to review its case involving claims that Google LLC lifted song lyrics from the website and posted them at the top of search results pages, causing millions of dollars in losses for Genius.
If the justices take up the case, they could settle an unresolved tension between copyright law and the terms of service agreements used on most websites, directly implicating a range of business models built for the internet. With circuit courts split on the correct approach, the case is ripe for review by the country’s highest court, attorneys say.
Companies like Genius that aggregate user-generated information—including Yelp Inc., Craigslist Inc., and eBay Inc.—often rely on contracts to prevent others from copying and reposting that information elsewhere. Genius uses crowdsourcing to maintain its database of lyrics and annotations for about five million songs. Individual users transcribe songs that are posted on Genius’ website for free.
Genius in 2019 accused Google of scraping the lyrics and republishing them at the top of Google’s search results page, diverting traffic from Genius’ website. Genius sued, claiming that taking the lyrics violates the website’s terms of service and is a form of unfair competition. In March, the US Court of Appeals for the Second Circuit ruled that copyright law’s “preemption clause” prevents Genius from advancing its breach-of-contract lawsuit against Google.
“If the Second Circuit’s decision is upheld, in at least one circuit in the country, large digital firms like Google will be able to appropriate content compiled by other firms and present it as its own,” said Sandeep Vaheesan, legal director at the Open Markets Institute, a think tank that studies monopolies.
The decision widened a divide over how federal appeals courts apply the preemption doctrine, a factor that has historically been one of the most important in predicting whether a case is taken by the Supreme Court.
“The circuit split here is very clear,” said Guy Rub, a law professor at Ohio State University who specializes in copyright law. “I find it hard to believe that even Google will make the claim that there is no circuit split.”
Genius debuted in 2009, as the music industry transitioned to digital streaming and stopped publishing official song lyrics, which were often found on the liner notes of a CD or record.
The website has attempted to fill in the gap, and help resolve “mondegreens,” mishearings of words or phrases in a song—like hearing “Hold me closer, Tony Danza” in Elton John’s “Tiny Dancer.” Millions of volunteers collaborate to decipher and transcribe songs, and Genius also pays music experts to interpret difficult passages.
The website runs advertisements and is free to use, but like most sites today, Genius requires users to agree not to reproduce the content elsewhere.
In 2016, Genius suspected that Google was violating that condition when the search engine began displaying lyrics at the top of results for song lyrics searches. The website found evidence of the copying after embedding digital watermarks in its transcriptions through stylized apostrophes that spelled “red handed” when converted to morse code.
A Google spokesperson declined to comment on the case, and Genius didn’t respond to Bloomberg Law’s request for comment. Google has until November to respond to Genius’ Supreme Court petition, but the company has denied wrongdoing, saying in past statements that it obtains the lyrics from another source, LyricFind, which was also sued by Genius.
In court filings, Genius said that it has lost at least $50 million due to decreased web traffic from Google’s alleged reposting. The number of users who click through to Genius’ site has decreased by as much as 70%, the company said.
“Google’s theft of Genius’ content should be seen as part of its larger array of unfair competitive practices,” Vaheesan, who filed an amicus brief supporting Genius, said. He pointed to a House Judiciary Committee investigation that found Google “routinely engages in content appropriation or scrapping.”
Genius’ petition, filed in August, comes as Google and other tech companies are facing intense scrutiny from Congress and regulators over their market domination. The American Innovation and Choice Online Act, which a Senate committee approved this summer, would prevent large digital platforms from preferencing their own products at the expense of competitors. Momentum on that measure may have stalled.
Neither company claims to own the copyrights to the lyrics—and both obtained licenses to display them—but District Judge Margo K. Brodie found that copyright law preempted the lawsuit.
To prevent states from creating their own copyright rules, federal copyright law includes a preemption clause that bars lawsuits based on any state law that’s “equivalent to any of the exclusive rights within the general scope of copyright.”
Preemption is generally invoked when states “try to create a property-like regime or something that looks like copyright,” according to Rub, the Ohio State professor. Right-to-publicity laws, for example, allow people to control how their image is displayed and used, which can conflict with core elements of copyright law.
Google invoked the defense to beat Genius’ breach-of-contract claim, which is also based on state law.
The website’s terms of service agreement prevents visitors from copying the lyrics, so the contract claim isn’t “qualitatively different” from a copyright claim, the Second Circuit ruled, finding that preemption renders the contract unenforceable.
Rub said the ruling breaks from precedent established in at least five other circuit courts across the country. Only the Sixth Circuit has similarly found that copyright law preempts state contract law claims. He faults the Second Circuit for not recognizing that an enforceable contract requires consent from both parties and an exchange, elements that are fundamentally different from copyright law.
“All the mechanisms that are part of contract law don’t exist, or don’t need to exist, in a copyright claim,” Rub said. It would be “absurd” for a court to say that a corporate nondisclosure agreement about sensitive financial data is void because the contract prevents the copying or reproduction of that data, he said.
The Second Circuit’s ruling could undermine business models built for the internet, according to Subbaraman.
Companies that curate data sets can’t obtain a copyright for the data, but they still place a major investment in compiling the data and use contracts to monetize their work. Services like Yelp and Craigslist also can’t copyright their users’ posts or listings.
“When we as the public want to enjoy crowdsourced platforms, whether its Yelp or something like Genius, we have to recognize that there’s still a tremendous amount of energy and time that has to be invested at the front end,” Subbaraman said.
While some scholars over the years have pointed to the opposite concern—corporations using contract law to force consumers into coercive, lopsided terms of service—this case between two companies doesn’t raise that issue, said Viva Moffat, an intellectual property law professor at the University of Denver.
“The kind of policy concerns that you might be worried about aren’t present here,” Moffat said. “Google is perfectly able to read, understand, negotiate, and deal with contract issues. So we don’t have to worry about bargaining power or information asymmetry.”
Even if the Supreme Court declines to review the case, the preemption problem won’t be going away, according to Rub. The divide among the circuits will encourage plaintiffs to shop for a preferable court.
“Next time you sue Google, don’t sue it in New York,” he said.
The case is ML Genius Holdings LLC vs. Google LLC, U.S., No. 22-121, petition filed 8/9/22.
To contact the reporter on this story: Isaiah Poritz in Washington at [email protected]
To contact the editors responsible for this story: Adam M. Taylor at [email protected]; Jay-Anne B. Casuga at [email protected]
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By Isaiah Poritz