Posted by: Ross Arkin
It’s not a news story just because a music label is suing a digital music service. If that was all that was involved here it would be better labeled as a broken record. The unique aspect of this claim turns on the way that the digital music service allows organization of the music it offers to its customers.
First a bit of background: Spotify is a digital music service that allows its users to stream music from their servers. According to Spotify, it has 24 million active users ). Users have the option of listening for free with ads for a finite amount of time per month, or for a subscription fee, can listen an unlimited amount with no ads. Spotify is a totally legal service. Spotify keeps records of which artists are being listened to and how often. This allows Spotify to pay the artists/record labels it licenses from. As per these licenses, all the music on the Spotify network is DRM protected. (Wikipedia).
Ministry of Sound London Ministry of Sound) is a record label that specializes in dance music compilations. Music that Ministry of Sound has produced which appears on the Spotify network is licensed to Spotify for use on its streaming service. Although the Ministry of Sound music tracks (like all other music on Spotify) are all individually DRM protected, users still have the freedom to organize the music they find for their convenience, so long as it stays on the Spotify network. Some of the Spotify users have chosen to create playlists out of their favorite tracks, a feature that Spotify openly offers as part of its service. This is where the legal question comes in.
As we have learned, it is not just the substance of content that can be copyright protected, but the way it is organized can also fall within the law of copyright. It has long been settled law that facts are not copyrightable, but if those facts are organized in a unique and original way, they are. In Feist Publications v. Rural Telephone Service Company, the United States Supreme Court announced that a phone book containing names and phone numbers, organized in alphabetical order was not protected under copyright. The Court explained that the contents of the phone book were simply facts and alphabetical order is not a unique or novel organization system. Here, however, the situation seems quite different.
Ministry of Sound does not dispute the fact that Spotify has the rights to provide its users with access to stream the tracks, so the question to be resolved in court comes down to whether the organization of an album is, itself, copyrightable. There seems to be a solid argument on both sides. Obviously the order in which tracks appear on an album is generally not done simply for efficiency or ordered alphabetically. While there are many albums that are organized in such a way that seems like one track has no relation to the next, there are many albums (such as concept albums, see: Pink Floyd’s Dark Side of the Moon where each track leads in to the next seemingly making one full musical presentation. Though here, Ministry of Sound seems to be making the claim that Spotify users have made tracklists which mirror compilation albums. It seems that there would be less artistic expression involved in ordering tracks on a compilation CD than a typical studio album but that may just be ignorance speaking.
Would this distinction make a difference? Perhaps. However, the real issue here is not artistic expression, with regard to organization, the court would consider originality in examining the protectabilty of a compilation. A chief executive of Ministry of Sound has been quoted as saying “a lot of research goes into creating our compilation albums.” This seems to be invoking the “sweat of the brow” doctrine. This doctrine was rejected in Feist. Today, the amount of research really isn’t what courts are concerned with when determining if something is protected by copyright. MyWebGrocer LLC v. Hometown Info Inc. articulated, “A compilation of non-protectible facts is copyrightable if it “features an original selection or arrangement of facts.” While the songs themselves are not “non-protectible”, for analysis of this situation they can be treated as such because Spotify has the license to use these songs. Feist explains the originality requirement by stating “These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws.” Likely a court would find that Ministry of Sound’s compilation albums are organized in an original way because Ministry of Sound used at least a small amount of creativity in selecting what songs would be on the compilation album.
Generally, cases that have dealt with the copyright of the organization of information have dealt with the organization or indexing of information to search through conveniently (e.g. databases). Courts have not yet had to deal with a case such as this – where the material itself is licensed but the way it is organized is not – in the pre-digital age. An analogous situation might be if a publisher compiled literary works for an anthology. If there were copyright violation claims, generally the copyright holder made claims dealing with the literary works themselves, not the way they were organized.
Looking at this question from another angle, Spotify’s strongest argument would be that they are not the ones making the playlists, the users are. As we learned from the Betamax case, if a product provides substantial non-infringing uses, the makers of said product are not on the proverbial hook for what a minority of users do. Reports show that there are 1 billion (with a B) playlists created by users on the Spotify network. While there have yet to be released an actual reported number of playlists that mirror the Ministry of Sound compilation albums, it is very unlikely that it outweighs the non-infringing playlists on the Spotify network.
Finally, the more important question that one might pose to the executives over at the Ministry of Sound record label is; “Were you aware of what Spotify is when you agreed to license your music?” Of course it will be important to examine the actual terms of the license between Ministry of Sound and Spotify to know the full details. But it seems reasonable for a judge to look at at the bigger picture and tell Ministry of Sound (and any other music labels with strong feelings with regard to in what order the consumer is allowed or not allowed to listen to their music) that it should have been aware of the features of the service to which they were licensing their property. Did Ministry of Sound not know that Spotify users can make playlists? Did it know that playlists could be made but not expect playlists would be made that mirror its compilation CDs? Or perhaps Ministry of Sound was very well informed about the features of Spotify, had the foresight to know its compilation album order would be copied, and like a Venus Fly Trap, sat and waited patiently until one of Spotify’s users created that playlist and sprung into action with litigation. It is being reported that Ministry of Sound is not just seeking an injunctive order to prevent playlists that mirror its albums, but is also seeking damages and costs.