Dumbest 'Gotcha' Story Of The Week: Google, Genius And The Copying Of Licensed Lyrics
from the red-handed...-at-what? dept
You may have seen this story in various forms over the weekend, starting with a big Wall Street Journal article (paywall likely) claiming that Genius caught Google “red handed” in copying lyrics from its site. Lots of other articles on the story use the term “red handed” in the title, and you’ll understand why in a moment. However, there’s a lot of background to go over here — and while many Google haters are making a big deal out of this news, after going through the details, it seems like (mostly) a completely over-hyped, ridiculous story.
First, a little background: for pretty much the entire existence of this site, we’ve written about legal disputes concerning lyrics sites — going all the way back to a story in 2000 about LyricFind (remember that name?) preemptively shutting itself down to try to work out “licensing” deals for the copyright on lyrics. Over the years, publishers have routinely freaked out and demanded money from lyrics sites. As we’ve pointed out over and over again, it was never clear how this made any sense at all — especially on crowd sourced lyrics sites. It’s not as though lyrics sites are taking away from the sales of the music — if anything, they’re the kinds of thing that connects people more deeply to the music and would help improve other aspects of the music business ecosystem.
Over time, however, more and more sites realized that it was just easier to pay up than fight it out in court. One of those sites was Genius — originally “RapGenius” — which was called out by the National Music Publisher’s Association as one of the “worst” infringers out there a few years back. Genius eventually caved in and agreed to license lyrics, despite incredibly strong fair use claims (since the whole point of Genius was to allow for annotation and commentary).
However, in this latest case, it’s now Genius that’s complaining about someone else copying its content. Except… it’s not Genius’ content. This is what makes the story bizarre — which we’ll get to in a moment. However, first, it is worth highlighting the somewhat fun way in which Genius apparently “caught” Google using content from the Genius site as its source material. Basically, Genius hid a code in whether it used “straight” apostrophes or curly “smart” apostrophes:
Starting around 2016, Genius said, the company made a subtle change to some of the songs on its website, alternating the lyrics? apostrophes between straight and curly single-quote marks in exactly the same sequence for every song.
When the two types of apostrophes were converted to the dots and dashes used in Morse code, they spelled out the words ?Red Handed.?
The WSJ shows the following example from a snippet of lyrics from the Alessia Cara song “Not Today.”
So, this secret bit of encoding is kinda clever (as is the use of Morse code and the message it spells out). But, despite everyone freaking out over this, there’s a pretty big question? Does this even matter? And while CBS stupidly and incorrectly claims that Genius is suing Google over this, there’s no indication of any actual lawsuit yet, and it’s not clear what they could actually sue over.
First off, despite the headline accusations against Google, Google (1) licenses lyrics itself, and (2) gets them from LyricFind (remember them?) with whom it signed a big deal a few years back. This raises a few different issues.
First, as law professor Annemarie Briday noted, since both Genius and Google license the lyrics, it doesn’t really matter where they’re sourced from, as regards to copyright law:
Interesting competition/vertical integration issues here (@HalSinger), but no ? issues. If the reproduced lyrics are licensed, the actual source doesn?t matter. What am I missing? https://t.co/kGhQX37HIz
— Annemarie Bridy (@AnnemarieBridy) June 16, 2019
Indeed, in many ways, the situation reminds me of an important Supreme Court ruling from 1991 in Feist v. Rural Telephone Services. In that case, you had a telephone company that inserted fictitious residents and phone numbers into its phone books to catch anyone copying straight from its own directory. And, indeed, it caught Feist (“red handed”) copying directly from its phone books, by finding the fictitious entries in Feist’s directory. However, as the Supreme Court noted, there was no copyright interest in phone numbers, which were factual information. This was the case that explicitly rejected the “sweat of the brow” theory of copyright, saying that you only get copyright in new creative works.
This situation is not identical, because there is clearly a copyright interest in the lyrics, but since both parties (actually, all three parties, if we include LyricFind) have properly licensed the works, then we’re in the same basic legal framework. Anyone who is allowed to post these lyrics can and should be able to get them from anywhere.
The second reason why this story is likely all hype and no substance is the role of LyricFind. Google basically said “hey, we just get stuff from our partners, and don’t scrape, so if there’s a problem… it’s from our partners.” From the WSJ:
In a written statement, Google said the lyrics on its site, which pop up in little search-result squares called ?information panels,? are licensed from partners, not created by Google.
?We take data quality and creator rights very seriously and hold our licensing partners accountable to the terms of our agreement,? Google said.
After this article was published online Sunday, Google issued a second statement to say it was investigating the issue raised by Genius and would terminate its agreements with partners who were ?not upholding good practices.?
LyricFind separately denied copying from Genius, but that seems like a more likely culprit. In its own blog post, LyricFind says that it supplied the lyrics for Google, but denies copying from Genius, and says that the WSJ got a bunch of facts wrong:
The lyrics in question were provided to Google by LyricFind, as was confirmed to WSJ prior to publication. Google licenses lyrics content from music publishers (the rightful owner of the lyrics) and from LyricFind. To accuse them of any wrongdoing is extremely misleading.
LyricFind invests heavily in a global content team to build its database. That content team will often start their process with a copy of the lyric from numerous sources (including direct from artists, publishers, and songwriters), and then proceed to stream, correct, and synchronize that data. Most content our team starts with requires significant corrections before it goes live in our database.
Some time ago, Ben Gross from Genius notified LyricFind that they believed they were seeing Genius lyrics in LyricFind?s database. As a courtesy to Genius, our content team was instructed not to consult Genius as a source. Recently, Genius raised the issue again and provided a few examples. All of those examples were also available on many other lyric sites and services, raising the possibility that our team unknowingly sourced Genius lyrics from another location.
As a result, LyricFind offered to remove any lyrics Genius felt had originated from them, even though we did not source them from Genius? site. Genius declined to respond to that offer. Despite that, our team is currently investigating the content in our database and removing any lyrics that seem to have originated from Genius.
The company also pointed out that Genius has only identified approximately 100 songs that were copied, and it has 1.5 million in its database, suggesting that it’s not in the business of regularly copying from Genius. But, again, it’s not clear why it would really matter that much either way, since everyone is licensed.
To put it another way: Genius’ license to the lyrics does not grant it any other rights beyond being able to display those lyrics itself. It has no exclusivity. It doesn’t hold the copyright. And, no, changing a few apostrophes is unlikely to meet the creative bar to get a new derivative copyright. So, there’s no additional right that Genius has to stop another licensee from using its version of the lyrics.
There’s a separate issue here worth noting as well: all of this demonstrates just how idiotic the whole “licensing of lyrics” business is — considering that what everyone here is admitting is that even when they license lyrics, they’re making it up much of the time. Specifically, what people are noting is that they license lyrics from the publishers, but the publishers themselves rarely even have or know the lyrics they’re licensing, so lyrics sites try to figure them out themselves and “create” the lyrics file which may or may not be accurate. Indeed, the WSJ reports that this is why Genius first became suspicious of Google — because on one particularly difficult to understand track, it had reached out to the musician directly for the lyrics, and then was surprised to see the same version on Google.
But… if the publishers don’t even know they lyrics they’re licensing, then what the fuck are they licensing in the first place? The right to try to decipher the lyrics that they supposedly hold a copyright on? Really?
One music guy suggested that a different “source” of the “problem” (if you do consider it a problem), is that since the publishers have no idea what the lyrics are anyway, THEY might be sourcing the lyrics themselves from Genius and then passing them along to Genius.
In short, the whole lyrics/copyright space remains a clusterfuck. But it’s difficult to see how it’s at all Google’s fault.
Some people have raised a few other possible legal arguments that have at least somewhat more merit than any copyright claim, but still strike me as incredibly weak. First, there’s the argument that this kind of scraping violates Genius’ terms of service. Of course, that opens a Pandora’s box of how enforceable click through terms of service actually are (though, many courts have found them binding). But then it will matter quite a bit as to whether or not it was actually Google, LyricFind or someone else who copied the content from Genius. And, given everything discussed above, tracking that down seems almost impossible — and given the low number of “copied” lyrics found, it certainly doesn’t appear to be a major automated scraping situation.
The other possibility that a few people have suggested, is that there are competition/antitrust arguments to be made against Google here. That argument boils down to Google using its size and position to abuse that position to harm the competitor Genius. And… maybe? There was a similar complaint a few years ago about Google apparently sinking a site that tried to estimate the “net worth” of celebrities, by posting that info in a Google “answer box” and not having people click through to the celebrity site.
But that argument also strikes me as incredibly weak for multiple reasons. First, if Google putting the info from your site in an answer box destroys all your traffic and your business, then, um, you didn’t have very much of a business in the first place, and it’s not clear that your site really adds that much value. At the very least, it suggests that your business is not that defensible. In the case of Genius, the site has long insisted that its real value was in the annotations, not just the lyrics. But now it’s complaining that showing just the lyrics (which tons of other sites also have) is somehow removing traffic? That’s… weak. Second, going by consumer benefit alone, Google has a pretty strong argument that displaying this information (and again, with lyrics, it’s all properly licensed) is a lot better for the users than shunting them off to a third party site. And, third, as evidence above, it doesn’t appear that Google actually did anything here at all. Other than properly licensing lyrics via LyricFind. It’s very difficult to see how there’s any antitrust issue with that.
In the end, this is an interesting story — especially in highlighting how Google was “caught” — but it’s hard to see what the actual legal problem is here. There are plenty of reasons to be concerned about Google, but the fact that its properly licensed lyrics matches someone else’s properly licensed lyrics, doesn’t seem like one of them.