Posted By: Ross Arkin
Ever since the Sugar Hill Gang proclaimed “I said a hip, hop, the hippie – the hippie to the hip hip-hop, and you don’t stop the rocking to the bang-bang, boogie say up jump the boogie to the rhythm of the boogie the beat.”, hip-hop fans have collectively often said: “What?”
Enter the function of the lyric site. Not just hip-hop fans but fans of music of every genre have often found themselves utterly confounded when it comes to certain lyrics. Before the advent of the internet, the most common way for people to settle lyric disputes was to simply check the hardcopy booklet that came with a retail version of an album, if the album did in fact come with such an insert. Before these inserts existed the only way to obtain a copy of the lyrics to a song was to purchase a song book or sheet music. Now, if anyone were to tell you that Jimmy Hendrix was singing about kissing a guy, you can pull up any number of websites dedicated to displaying the lyrics of songs and clarify what has been misheard. By some reports, five million people google the term “lyrics” every day. (Alex Pham, NMPA Targets Unlicensed Lyric Sites). However, it turns out that the unauthorized (read: unlicensed) display of copyrighted lyrics may be an infringing activity.
The latest battleground where the copyright war is being waged is a website called Rap Genius. The National Music Publishers Associations (NMPA) has recently sent take down notices to many lyric sites claiming that the sites have not obtained licenses to the lyrics of those songs. The largest profile website of all those who received take down notices was Rap Genius.
Rap Genius is a site started in October 2009 by a group of college friends from Yale University. The site offers a search function for users to find lyrics by song name or artist. The site is unique in that it doesn’t just display the lyrics of songs, but also allows users to add their own explanations and interpretations of the meanings of the lyrics. Rap Genius is not just a site maintained by fans for entertainment purposes, but a commercial venture with multimillion dollar investors and profits. This is one reason that the NMPA sets it apart from the thousands of other lyric sites on the web. In a statement from the NMPA, an executive was quotes as saying “This is not a campaign against personal blogs, fan sites, or the many websites that provide lyrics legally.” (Pham, Alex NMPA Targets Unlicensed Lyric Sites). The commercial aspect of Rap Genius is what has made it a target.
This is not the first time a lyric website has been sued over licensing issues and copyright claims. Back in 2010 a music publishing company known as Peermusic brought suit against the owner of lyricsdownload.com. (Gardener, Eriq LiveUniverse Lyrics Lawsuit). Peermusic, III, Ltd. v. LiveUniverse, Inc. led to the demise of the lyric site through a permanent injunction on the website owner to refrain from posting lyrics he did not own the license to.
The best defense that lyric websites have would be under the Fair Use Doctrine. This consists of four prongs:
- Purpose and character of the work
- Nature of the copyrighted work
- Amount and substantiality
- Effect of the use upon the potential market – record labels want to publish their own lyrics?
- The commercial nature of these sites is clear. These lyric sites are gaining a lot of revenue from ads that appear on the side of the page. If the website is not commercial in nature, as the NMPA representative has said, then likely they would not be involved in litigation. So if the infringing website was commercial in nature, this factor would weigh against the lyric website. However, the simple fact that a lyric website may be generating traffic and turning a profit through ad revenue does not always trump the fact that these lyric sites may benefit society and benefit the arts by allowing people to further study music.
- This certainly weighs in favor of the copyright holders because the nature of the copyrighted work is certainly wholly creative. Song lyrics do not serve purposes like facts or news stories and therefore a court would likely not find any need for the fair use protection of copied song lyrics.
- The amount of the copyrighted work is clear as well. The lyric websites transcribe and display the entirety of the lyrics of the published songs. Though this factor is not dispositive, it weighs slightly against the lyric websites.
- The effect upon the market for the copyright holders is a contentious issue when it comes to lyrics websites. Lyric sites can argue that simply displaying lyrics does not and cannot in any way substitute for someone actually listening to a song containing the lyrics displayed. Therefore there would be no negative effect on the market value for the copyrighted work. However, copyright holders have the right not just to the song as a whole but the lyrics themselves. This means that if there were a market just for display of lyrics, unlicensed display of lyrics may affect the value of that market.
In regards to factor I, Rap Genius could make several arguments in its own defense. First, Rap Genius can differentiate itself from other lyric sites because Rap Genius gives its users the ability to comment and add interpretation to lyrics directly on the site. This brings with it an aspect of critique and discussion that adds to the value of the lyrics displayed. Such critique of the protected work may be a first amendment defense to infringement claims. Courts may view this in favor of Rap Genius and recognize that there may be some transformative value added to the lyrics.
In regards to factor II, as the copyrighted works here that are displayed on the Rap Genius site are wholly creative, it is unlikely that this factor would be helpful to prove a fair use defense.
In regards to factor III, here, as with other lyrics websites, each entry on Rap Genius includes the entirety of a copyrighted work as it is the full text of the copyrighted lyrics.
In regards to factor IV, Rap Genius may have its strongest argument in that they have not affected the market value for these songs. Generally, content creators have not previously attempted to nor even made the argument that they want to enter the business of publishing lyrics online themselves though it is possible that they could. Making this argument and showing a loss of marketability due to these unlicensed publishings of lyrics may make all the difference to a judge. Moreover the copyright holders can certainly show that they are losing potential revenue due to the lyric sites not having to pay the copyright holders for licensing rights. These facts may lead this factor to weigh in favor of the copyright holders.
It remains to be seen if Rap Genius can escape the same fate of other lyric sites who have been forced out of business. Though if Rap Genius is unable to successfully use a fair use defense argument, because they are so successful, they may want to simply seek the ability to negotiate licensing deals with the music labels or artists from which they publish song lyrics so that they can continue their business and avoid litigation. This way, Rap Genius continues pulling in revenue, copyright holders are compensated, and Hip Hop fans can continue searching for and discussing lyrics. This way, everyone wins.
Posted By: Ryan Bethell
Hot off the heels of an $8,000,000 settlement with apple over a patent covering “Downloadable Playlists,” Personal Audio, a digital audio company in Texas, has set its sights on popular podcast producers. Personal Audio has asserted a patent pertaining to cover “how audio files are organized and downloaded on the internet,” over several popular podcasts producers, including Adam Carolla, who owns Carolla Digital, and hosts the most downloaded podcast in the world, The Adam Carolla Show. Not to be intimidated, Carolla is deputizing his listeners to raise social awareness about patent trolls, and is preparing to crowd fund a robust legal defense. Personal Audio’s attorney, Richard Baker says “We’re putting our effort into the larger people because there’s a larger return there,” but will the company ultimately regret their decision to anger some of the loudest and most influential voices in on the internet?
Personal Audio isn’t doing anything drastically different than the other so called “patent trolls” (a term to describe patents holders that litigate on patents that they own but do not use) have been doing since 2002, but jurors and voters may respond more favorably to podcast personalities than they are the corporations that are normally defending these suits. Neel Chatterjee, former counsel for Mark Zuckerberg and Partner in charge of intellectual property at Orrick, Herrington & Sutcliffe, dropped by the Adam Carolla show on November 21 to discuss his thoughts on the case, as well the state of patent litigation generally. Read more…
Posted by: Ryan Bethell
It should come as no surprise that large businesses such as Universal and Sony have a financial interest in protecting their intellectual property online. For the biggest stakeholders, this means policing thousands of instances of arguably copyrighted material ever day – a task that many companies prefer to automate. Companies need to be mindful of over policing, however, in light of Section 512(f) of the DMCA, which states that “any person who knowingly materially misrepresents under this section (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer.” Further, some recent cases coming out of the ninth circuit suggest that it may become necessary for companies to examine whether or not a potentially infringing post are fair use before serving a takedown notice. However, determining whether or not material is fair use may be impossible for a computers, necessitating that companies augment their existing automated takedown procedures. If serving a takedown notice before considering whether allegedly infringing material is fair use is found to be misrepresentation, then companies will need to drastically overhaul how they police their content in or face potential liability.
Record and Movie industries – two of the biggest servers of takedown notices – are largely consolidated. The record industry, for example, is dominated by Sony and Universal, each having an over 30% share in US album and digital downloads. The sheer volume of material that these companies hold, and the web traffic that it can drive, necessitates that the companies act quickly in order to protect their investments. Online video streaming is big business: In 2012, “Call me Maybe” was streamed 120,000,000 times (it has since climbed to over 500,000,000 views), and Miley’s “Wrecking Ball” amassed over 300,000,000 since its release just this September. Copyright holders make money on advertising on the sites that host such videos, but unauthorized reposts divert this traffic. Accordingly, copyright holders seek to have infringing material removed quickly from the internet. Read more…
Posted By: Robert McManimon
One of the modern inventions of the computer age has been the transition from localized storage to cloud computing. (http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1222&context=dltr). This trend takes advantage of the massive commercial storage banks and relatively high connection speeds now available that previously would have made such an outsourcing of data management unfeasible. However, this trend and all of its benefits has evolved alongside another trend: the rise of Electronic Discovery. The reliance upon off-site servers creates a series of new burdens and concerns for small-business owners that many may be unaware of.
Electronic Discovery refers to the laws governing the production of electronic materials for the purposes of litigation. ( http://www.law.cornell.edu/rules/frcp/rule_34). These materials are generally referred to as “Electronically Stored Information” (ESI). Historically, ESI has been stored on-site, in computers and servers that are localized, and with various other methods of storage available for the long term. ( Note: The Zublake cases discussed the various nuances to the different types of data storage traditionally used. They discuss tape-based storage as the primary mechanism for archiving of data. http://en.wikipedia.org/wiki/Zubulake_v._UBS_Warburg). When those files were required to be produced for the purposes of litigation, it was relatively easy to discern where they were located, what laws governed, and what steps to follow. Read more…
Posted By: Robert McManimon
The modern international human rights regime is complex. There are, of course, codifications of binding agreements between states found in bilateral and multilateral treaties that discuss the various underpinnings of the legal regime. There are even rights and norms that have been accepted as binding international custom. Whether customary international law or the product of a treaty, these norms generally place a duty upon states. Often, this duty requires them to abstain from various types of behavior, or in rare cases places a burden upon them to facilitate the fulfillment of those norms for persons residing within their espace juridique. With the emergence of the internet, you have an increasing emphasis being placed upon its importance as a mechanism for national and international commerce and communication. The medium, with its unique transnational benefits and the ease with which it facilitates information exchange, has spurred a common and important question: Does the modern human rights regime protect access to the internet? And if not, should it? Read more…
Posted by: Robert S. McManimon
In our American system, we’ve grown accustomed to the first sale doctrine. (http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm01854.htm). As we’ve seen, this notion has created a variety of issues for software companies, who have instead opted to license their work in order to maintain control over it and any future sale. Ironically though, this type of behavior is actually a somewhat nuanced response to prior attempts to restrict the first sale doctrine on behalf of those software companies. As such, it may well be that the software giants would prefer a more European solution, namely droit de suite. Read more…
Posted By: Jeremiah Chin
One of the earliest litigation decisions is where to file a law suit. Usually the lawsuit happens where the plaintiff lives, or where the injury involved occurred. But when the harm arises from internet communications, how do courts determine the proper place to file a law suit? Tracking exactly where the injury occurred on the internet may seem like a pipe dream in a series of tubes, attempting to put a physical location on harms in virtual space.
On one level, the internet has many physical properties, from the individual computers that access the internet to Internet Service Providers (ISPs) which maintain physical servers in different states. In a federal civil suit, a court must establish personal jurisdiction—or the power of the court to decide a case involving the named parties—in order to even reach the merits of the issue. Filing in the wrong forum may lead to an early dismissal if a court does not have specific or personal jurisdiction over a defendant. F.R.C.P. 12 (b) (2). Read more…
Posted by: Jeremiah Chin
The Internet is praised for its ability to facilitate communication across physical boundaries, allowing people to instantaneously video chat, send e-mail or create websites that can be viewed around the world. Yet as this international communication medium expands, it raises important questions of governance in a digital age. Is cyberspace the final frontier for borders and boundaries that have traditionally defined sovereignty?
Although the Internet was born from a military project funded and controlled by the United States Federal Government, the United States has ceded almost all of its maintenance and regulatory powers to the Internet Corporation for Assigned Names and Numbers (ICANN). In order for the internet to function, there must be some uniform means of coordinating the rapid exchange of information. ICANN acts as the locating service that allows computers to connect in a uniform way by coordinating the Internet Assigned Numbers Authority (IANA) through a Domain Name System (DNS). The protocols managed by ICANN help you visit sites like Cyberbeartracks by allowing you to input cyberbeartracks.com rather than the complex numbers string that would otherwise lead you here. Although ICANN is now largely independent of United States controls and regulation, ICANN is still a non-profit corporation organized under United States laws, located in California.
After Edward Snowden began to leak information on the United States’ surveillance efforts, internet coordinators like ICANN and Nation-States called for a shift away from United States authority. Brazil, for example, has attempted to localize its citizen’s internet usage and data storage by requiring servers to be placed within the country. Previous proposals to have the United Nations take control of ICANN’s regulatory properties have failed. Both proposals call for decreased actual or apparent authority of the United States, but present serious pitfalls for the future of internet governance. Read more…