Copyright Law Preempting Contractual Terms of Use

by Dennis Crouch

The pending Supreme Courtroom petition in ML Genius v. Google focuses on an vital issue of copyright preemption.

The primary set up: Genius.com has a lot of song lyrics, most of which were  posted by followers (i.e., “crowdsourced”). LyricFind scraped the data and then sold it to Google.  With the data in hand, Google now displays the lyrics in the lookup outcomes rather 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 claim.  But, Genius does have to have its buyers to agree to an considerable contractual agreement that features a assure that the consumer will not commercially reproduce, copy, or distribute any part of the Genius service.  At some issue, Genius commenced to suspect that Google was applying the lyrics from its support and established-up some test situations that proved their suspicion.

After some back again-and-forth, Genius finally sued Google in New York point out court docket, alleging that

Google LLC and LyricFind have been caught purple-handed misappropriating content from Genius’s web page, which they have exploited–and proceed to exploit–for their possess economic benefit and to Genius’s monetary detriment.

Primary NY Grievance.  The complaint asserts breach of contract primarily based on violation of its phrases of provider unfair competition (dependent upon point out legislation) and unjust enrichment.   Google eliminated the scenario to Federal Court docket and then sought dismissal of the case–arguing that all claims asserted in the scenario are preempted by Segment 301(a) of the Copyright Act.

(a) … all authorized or equitable legal rights that are equal to any of the unique rights within the normal scope of copyright as specified by segment 106 in works of authorship that are fastened in a tangible medium of expression and appear in the subject matter make a difference of copyright as specified by sections 102 and 103 … are ruled exclusively by this title. Thereafter, no human being is entitled to any this kind of right or equivalent suitable in any such operate underneath the frequent regulation or statutes of any Condition.

17 U.S.C. § 301(a).  The district courtroom discovered the claims preempted. Genius Media Group Inc. v. Google LLC, 19-CV-7279 (E.D.N.Y. Aug. 10, 2020). On enchantment, Genius centered only on the agreement declare, but the Next Circuit nonetheless affirmed–holding that the copyright act preempts condition law agreement claims. ML Genius Holdings LLC v. Google LLC, 20-3113, — F.4th — (2d Cir. Mar. 10, 2022).  Now Genius has brought its situation to the US Supreme Court docket with the following question:

Does the Copyright Act’s preemption clause make it possible for a organization to invoke standard point out-law contract remedies to enforce a assure not to duplicate and use its written content?

Petition for Cert.

The situation ties in directly to loads of academic function on the subject matter.  Decide Easterbrook’s 1996 decision in ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996) was a flashpoint with its holding that contractual restrictions on the use of facts was not  so preempted.  The ProCD approach has been adopted by a quantity of circuits, but not the Next Circuit.  Prior to its selection in this situation, the Next Circuit appears to have not said any distinct precedent on the subject matter:

Thinking of the prominence of the S.D.N.Y. and how often and yet inconsistently it has ruled on the difficulty, it is really remarkable that the Next Circuit has not however shipped a binding precedent on this situation.

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

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