Supreme Court says Genius' song lyric copying claim against Google wasn't smart

Website can't use state contract law to police copyrights it doesn't own

The US Supreme Court has refused to hear song lyric website Genius' web scraping claim against Google and LyricFind for copying its data in search results.

Genius testified that it had caught the search giant out literally red-handed. When Google started showing song lyrics inside a search information box in 2014, the lyric website noticed that the results were often character-for-character copies of song texts it hosts.

So in 2016, the company, operated by ML Genius Holdings LLC, set up a trap. It "watermarked" the lyrics to a selection of newly released songs by using Unicode curly apostrophes (U+2019) in certain places and straight apostrophes in others (U+0027).

"Genius set the 2nd, 5th, 13th, 14th, 16th, and 20th apostrophes in each watermarked song as curly apostrophes and all the other apostrophes as straight," the company said in its December 2019 complaint [PDF] against Google and lyric data provider LyricFind. "If the straight apostrophes are interpreted as dots and the curly apostrophes are interpreted as dashes, the pattern spells out 'REDHANDED' in Morse code."

Several months prior, Genius had written to Google to complain and Google responded that it had obtained the lyrics from LyricFind. Genius also wrote a cease-and-desist letter to LyricFind, demanding that it stop appropriating its lyrics in violation of its terms of service, to no avail.

The Genius terms of service require visitors to "agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or transmit for any commercial purpose" without Genius' permission.

But Genius' terms asked too much it seems.

On June 16, 2019, the Wall Street Journal wrote about the dispute, and two days later Google defended itself in a blog post.

"We do not crawl or scrape websites to source these lyrics," said Satyajeet Salgar, who was group manager for search at the time. "The lyrics that you see in information boxes on Search come directly from lyrics content providers, and they are updated automatically as we receive new lyrics and corrections on a regular basis."

Salgar said that Google asked its partners to look into Genius' claims and that Google Search would begin including an attribution notice with song lyrics from third-parties to make it clear where the data had been obtained.

Bring in the lawyers

On December 3, 2019, Genius sued Google and LyricFind alleging breach of contract and unfair competition.

By August 2020, Judge Margo Brodie had dismissed the case [PDF], ruling that Genius' terms of service claims "are nothing more than claims seeking to enforce the copyright owners’ exclusive rights to protection from unauthorized reproduction of the lyrics and are therefore preempted [because Genius does not own the copyrights at issue]."

Federal Copyright law prevents states from enforcing penalties for copyright violations. Genius, not holding any of the song copyrights at issue, didn't have standing to sue it was decided.

Genius appealed and was again rebuffed. On March 31, 2022, the US Second Circuit Court of Appeals affirmed the lower court ruling.

So Genius appealed to the Supreme Court, asking the high court [PDF] to consider whether the Copyright Act's preemption clause "allow a business to invoke traditional state-law contract remedies to enforce a promise not to copy and use its content?"

Last September, the Open Markets Institute, a non-profit think tank opposed to monopolies, asked [PDF] the Supreme Court to review the case because the Second Circuit ruling "provides companies like Google with a license to scrape third-party websites and misappropriate the economic benefit of their work product, even after expressly agreeing not to do so as a condition of accessing that work product."

In May, the US Solicitor General took the opposite position [PDF], arguing the Supreme Court should not hear the case.

Beyond Genius' problematic argument that it should be able to police copyrights it doesn't own, the Solicitor General questioned the proposition that simply visiting a website creates a binding contract. The government's brief says Genius' position is that "any person who visits [the company's] website automatically becomes a contractual counterparty who is deemed to have agreed to [the company's] terms of service, whether or not the visitor is aware of the browsewrap agreement or any of its specific provisions."

Despite a clever watermarking scheme, Genius' legal arguments weren't bright enough to prompt a reevaluation of how copyright and contract law intersect. On Monday, the US Supreme Court refused to hear the case, affirming the Appeals Court decision. ®

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