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Copyright Law Preempting Contractual Terms of Use

by Dennis Crouch

The pending Supreme Court petition in ML Genius v. Google focuses on an significant challenge of copyright preemption.

The basic setup: Genius.com has a lot of tune lyrics, most of which were  posted by supporters (i.e., “crowdsourced”). LyricFind scraped the knowledge and then marketed it to Google.  With the facts in hand, Google now shows the lyrics in the search outcomes alternatively than directing website traffic to Genius.  Genius sued.

Agreement not Copyright: Genius does not hold the copyright to the lyrics and so has no copyright infringement assert.  But, Genius does call for its buyers to agree to an extensive contractual arrangement that features a guarantee that the consumer will not commercially reproduce, duplicate, or distribute any part of the Genius support.  At some issue, Genius began to suspect that Google was applying the lyrics from its provider and set-up some check instances that proved their suspicion.

Just after some back again-and-forth, Genius at some point sued Google in New York condition courtroom, alleging that

Google LLC and LyricFind have been caught crimson-handed misappropriating articles from Genius’s web-site, which they have exploited–and proceed to exploit–for their personal fiscal benefit and to Genius’s monetary detriment.

Original NY Complaint.  The complaint asserts breach of deal based mostly upon violation of its phrases of services unfair competition (centered upon state legislation) and unjust enrichment.   Google taken off the case to Federal Court docket and then sought dismissal of the case–arguing that all promises asserted in the case are preempted by Segment 301(a) of the Copyright Act.

(a) … all legal or equitable legal rights that are equal to any of the exceptional legal rights in just the typical scope of copyright as specified by area 106 in functions of authorship that are fastened in a tangible medium of expression and arrive within just the matter make any difference of copyright as specified by sections 102 and 103 … are governed exclusively by this title. Thereafter, no particular person is entitled to any these kinds of proper or equivalent suitable in any these kinds of do the job less than the typical law or statutes of any Point out.

17 U.S.C. § 301(a).  The district court located the statements preempted. Genius Media Group Inc. v. Google LLC, 19-CV-7279 (E.D.N.Y. Aug. 10, 2020). On attractiveness, Genius centered only on the contract assert, but the Second Circuit nevertheless affirmed–holding that the copyright act preempts point out regulation contract claims. ML Genius Holdings LLC v. Google LLC, 20-3113, — F.4th — (2d Cir. Mar. 10, 2022).  Now Genius has introduced its case to the US Supreme Court docket with the next dilemma:

Does the Copyright Act’s preemption clause enable a business enterprise to invoke regular point out-law deal cures to enforce a assure not to copy and use its information?

Petition for Cert.

The scenario ties in immediately to loads of tutorial do the job on the subject.  Judge Easterbrook’s 1996 determination in ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) was a flashpoint with its holding that contractual limitations on the use of info was not  so preempted.  The ProCD technique has been adopted by a range of circuits, but not the Second Circuit.  Prior to its final decision in this scenario, the 2nd Circuit seems to have not said any clear precedent on the topic:

Looking at the prominence of the S.D.N.Y. and how often and however inconsistently it has dominated on the difficulty, it is actually exceptional that the 2nd Circuit has not but delivered a binding precedent on this issue.

Guy A. Rub, Copyright Survives: Rethinking the Copyright-Deal Conflict, 103 Va. L. Rev. 1141, 1181 (2017).

The Genius brief was filed by Joshua Rosenkranz (Orrick) alongside with Christopher Cariello, Jennifer Keighley, Lauren Weber, and Emily Villano.  Briefs from Google and LyricFind are thanks September 8, 2022.