It Doesn't Take A Genius To Recognize How Dumb Genius' Lawsuit Against Google Is Over 'Stolen' Lyrics
from the not-how-any-of-this-works dept
Earlier this year, we wrote about what we referred to as “the dumbest gotcha story of the week”, in which the annotation site Genius accused Google of “stealing” lyrics from their site — which they “discovered” by a modestly clever use of curly apostrophes and straight apostrophes as hidden markers in their own posting of lyrics, which they then spotted on Google. As we explained, the actual evidence did not suggest at all that Google was copying the lyrics from Genius. Instead, as became obvious, Google (like most other lyrics sites on the internet), licenses lyrics from LyricFind. Indeed, it later came out that basically every site that uses LyricFind had the same “watermarked” lyrics.
In our original post, we went through all of the various legal arguments that some were suggesting Genius could use against Google, and highlighted how each of them was laughable. The copyright doesn’t belong to Genius, so there’s no copyright claim. Also, as we noted in the original post, when sites like these “license” lyrics from publishers, they’re often just licensing the ability to guess at what the lyrics are. The publishers themselves often don’t have their own lyrics. Indeed, we pointed out that some publishers use the various lyrics sites as the source for their own lyrics that they licensed. So everyone’s just kind of making it up as they go along, and there’s no proprietary right to your version of the lyrics vs. someone else’s.
However, for reasons I do not understand, Genius has decided to go ahead and sue both Google and LyricFind over this. The complaint is in state court in Brooklyn, and… it’s bad. I mean, if people were to put the complaint on Genius and “annotate” it, most of it would just be people laughing at how bad the arguments are.
And, honestly, this entire lawsuit is strategically idiotic for Genius — a site that regularly takes content from elsewhere on the internet for the purpose of annotating it. Indeed, I used to regularly see Techdirt posts hosted on Genius for others to annotate (though now I’m looking and it appears that Genius has gone back to focusing just on lyrics, and stopped hosting annotated blog posts).
There are no copyright claims, of course, in the complaint, because Genius holds no copyright here. Instead, the claims are just grasping for anything. And I can’t see the lawsuit getting very far. The strongest claim (and it’s not that strong) is that there’s a competition issue with Google displaying lyrics in its “one box” at the top of search results. The argument is that by providing this information directly, rather than passing you on to a link to Genius, Google is somehow being anti-competitive:
When virtually all mobile users and many desktop users search for song lyrics, and Google returns an Information Box containing the requested song lyrics, the Information Box is displayed in such a manner that the user cannot see any other search results without first scrolling down, as shown below.
Moreover, Google?s lyrics Information Boxes frequently appear in search results as a part of larger search features that include links to Google-owned revenue-generating products, such as YouTube and Google Play, as shown below. Specifically, many lyrics Information Boxes prompt users to play the music video on YouTube or stream the song on Google Play.
Of course, the obvious response to this is that there are perfectly legitimate, non-anti-competitive reasons to display the lyrics as part of the search result: because that’s a much better experience for end users. That’s why Google licensed the lyrics in the first place. The argument that Google is unfairly then linking to its own “revenue generating products” is potentially interesting, but directly undermined by Genius’ own screenshot showing that Google also links to competing services alongside its own links (indeed, in the screenshot they used to suggest anti-competitive behavior, the top link is actually to competitor Spotify, not Google!).
Soon after this, Genius undermines its own argument even more by highlighting that some Google lyrics are different from Genius’:
For example, as shown below, Google?s Information Box results display inaccurate lyrics for the song ?Perfectly Wrong? performed by Shawn Mendes. Genius?s website, on the other hand, displays the accurate lyrics.
They’re trying to make a competition argument here — similar to Yelp’s various complaints against Google — that Google is favoring its own inferior quality information for the information box at the top, when it should pull from better sources, like Yelp or Genius. But… doesn’t that completely undermine the idea that Google is just copying Genius’ version of the lyrics (over which Genius has no proprietary interest in the first place)? If the complaint is just that Genius doesn’t like that Google doesn’t display its lyrics (meaning, the dispute is really that Google isn’t paying Genius for a license instead of LyricFind), then that seems pretty damn weak. There is no requirement that Google has to pull or license from Genius, and there’s even a potential Section 230 defense, that Google’s choice of whose lyric’s to display are immune from liability.
That leaves just the pure competition question — but the easy response to that is, again, that Google is providing users a better overall experience, and under current antitrust standards, it’s tough to build a case around that.
Anyway, after complaining that Google doesn’t use Genius for lyrics, the complaint shifts to whining about when it does use Genius for lyrics, calling it “misappropriation.” There is an attempt to argue that Google copied directly from Genius (rather than from LyricFind, or another lyrics licensing service Musixmatch) based on a single song, “Panda.” Genius highlights that on a specific day in June of 2016 (?!?), the lyrics on Google appeared to match directly with Genius’ version, but not the versions found on sites that licensed from LyricFind or Musixmatch. Of course, it’s possible that the sites that Genius used to check those others databases were not up to date. And, more importantly, Genius still has no proprietary interest in the lyrics, so there’s simply no argument for why any of this should even matter.
There are other self-contradictions in the lawsuit. Genius complains that after they alerted Google to copying of its version of lyrics, Google and LyricFind did not immediately remove those copies. But then, later, when both companies changed their versions of the lyrics, Genius complains again that this is them trying to hide the evidence.
The wholesale removal of Watermark #1 following the publicity of the Wall Street Journal article suggested to Genius that a deliberate effort was being made to conceal the misappropriation of lyrics from Genius?s website, and Genius suspected that it was likely such misappropriation was continuing unabated.
Damned if you do, damned if you don’t.
Genius also notes that it added a new watermarking system later this summer, no longer just using the curly vs. straight apostrophes, but also using two different types of blank spaces.
This watermark involves replacing the 15th, 16th, 19th, and 25th spaces of each song?s lyrics with a special whitespace character called a ?four-per-em space.? This character (U+2005) looks identical to the normal ?space? character (U+0020), but can be differentiated via Unicode character codes readable by a computer. If one ignores the first 14 spaces of a song?s lyrics, then interprets the four-per-em spaces as dashes, and regular spaces as dots, the sequence spells out the word ?GENIUS? in Morse code, as shown below.
This is at least clever, but not sure how it has a legal bearing on the case. What is notable, at least, is that Genius claims that Google started removing the apostrophe watermarks, but missed these new watermarks, suggesting that if it was sourcing these lyrics from Genius, that it had set up a process to remove the known watermarks, but not the unknown watermarks:
Even more egregious, with regard to lyrics in Group C (lyrics featuring both Watermark #1 and Watermark #2), Genius identified numerous instances in which Watermark #1 was not present in Google?s lyrics Information Box, yet the same lyrics featured Watermark #2, the details of which had not previously been made public.
Again, this is clever, but so what? What is the legal basis that would make this violate the law? That’s not clear. Both Google, LyricFind, Genius and others all have a license to the lyrics, and part of that license is the right to display whatever version of the lyrics they want. Adding in silly watermarks doesn’t create a quasi property right in “your” version of the lyrics.
When we get to the actual claims in the lawsuit, Genius argues that LyricFind scraping its site is a breach of contract. Of course, this comes just months after a court said that scraping of public information on website is not a violation that can be litigated. That was in the 9th Circuit, which is not binding on a NY state court, but it is notable.
I have a difficult time seeing this lawsuit getting very far, though perhaps some courts will take a flyer on the competition claims. That’s at least more reasonable than the misappropriation arguments, that appear to be pure nonsense. Still, it’s quite amazing that a site whose entire reason for being is to annotate others’ content is now arguing that no one can make use of content (which it doesn’t even have any proprietary interest in) from its own site.