Majors obtain summary judgment against Grooveshark, finding copyright infringement liability.
An interesting lawsuit was recently filed by a group of radio stations over the digital retransmissions of terrestrial broadcasts. VerStandig Broadcasting filed a declaratory judgment action against sound recording performance royalty collection society SoundExchange over a specific exception in the Copyright Act that limits the exclusive public performance right in sound recordings to be exclude retransmissions of AM/FM broadcasts within 150 miles of the original over-the-air transmission. Specifically, Section 114(d) limits the scope of a copyright owner’s exclusive right in the public performance of sound recordings by means of a digital audio transmission.
The performance of a sound recording publicly by means of a digital audio transmission, other than as part of an interactive service, is not an infringement … if the performance is part of … a retransmission of a nonsubscription broadcast transmission: Provided, That, in the case of a retransmission of a radio station’s broadcast transmission … the radio station’s broadcast transmission is not willfully or repeatedly retransmitted more than a radius of 150 miles from the site of the radio broadcast transmitter … . 17 U.S.C. § 114(d)(1)(B)(i).
VerStandig claims that when Congress created the retransmission exception, “geo-fencing” technology, which is technology that “determines a recipient’s physical location by comparing a receiving computer’s IP address, WiFi and GSM access point, GPS coordinates, or some combination against a real world map of those virtual addresses,” wasn’t available to limit the recipients of AM/FM broadcasters’ retransmissions. According to VerStandig, “When data is geo-fenced, only recipients physically located within the authorized locations can access the data over the Internet. Recipients who are physically located outside the geo-fence who attempt to access the data over the Internet receive a message explaining that the data is unavailable.” Today, according to VerStandig, “Geo-fencing is a proven technology. It is used by the gaming industry to restrict access to online gambling to recipients physically located in jurisdictions where gaming is legal. And it is used by marketers for the direct advertising of products to persons physically located in targeted markets.”
VerStandig sent SoundExchange a letter notifying SoundExchange of VerStandig’s intention to stop paying royalties on performances of retransmissions within 150 miles of the original transmission. SoundExchange apparently responded by stating that “the 150-mile exemption applies only ‘to retransmissions of broadcasts by cable systems to their subscribers or retransmissions by broadcasters over the air’ and that if the 150-mile exemption ‘did apply to [VerStandig’s] proposed simulcasting’ [VerStandig] would nevertheless need to pay royalties for copies or reproductions of the sound recordings in the FM broadcasts that it live streams.”
With respect to the first argument, the Senate Report on the Digital Performance in Sound Recordings Act appears to reject this conclusion. The Senate Report says
Section 114(d)(1)(B)(i) (retransmission of radio signals within 150-
mile radius of transmitter)
Under this provision, retransmissions of a radio station within a
150-mile radius of the site of that station’s transmitter are exempt,
whether retransmitted on a subscription or a nonsubscription
basis, provided that they are not part of an interactive service.
This provision does not, however, exempt the willful or repeated
retransmission of a radio station’s broadcast transmission more
than a 150-mile radius from the radio station’s transmitter. The
Committee recognizes that the 150-mile limit could serve as a dangerous
trap for the uninitiated or inattentive. To ensure against
that possibility, section 114(d)(1)(B)(i) provides that a retransmission
beyond the 150-mile radius will fall outside the exemption
only if the retransmission is willful or repeated. The Committee
intends the phrase ‘‘willful or repeated’’ to be understood in
the same way that phrase was used in section 111 of the Act, as
explained in the House Report on the 1976 Act, H. Rept. 1476, 94th
Cong., 2d sess. 93 (1976).
Pursuant to section 114(d)(1)(B)(i)(I), the 150-mile limitation does
not apply when a nonsubscription broadcast transmission by an
FCC-licensed station is retransmitted on a nonsubscription basis by
an FCC-licensed terrestrial broadcast station, terrestrial translator,
or terrestrial repeater. In other words, a radio station’s broadcast
transmission may be retransmitted by another FCC-licensed broadcast
station (or translator or repeater) on a nonsubscription basis
without regard to the 150-mile restriction.
In addition to appearing to generally support VerStandig’s position, the highlighted language appears to capture TuneIn and iHeartRadio’s aggregation of simulcast transmissions. As I understand it, the bulk of listening of retransmitted terrestrial broadcasts on services like iHeart are people listening to their old home-town station in their new town; e.g., I can listen to KDKA from Pittsburgh here in Oakland.
With respect to SoundExchange’s second argument (i.e., needing a license to make reproductions), this may run head-long into a very interesting fair use defense. If Congress intended radio broadcasters to retransmit digitally their analog signals without paying a royalty under Sec. 114, could Congress have intended for the record labels to be able to demand a royalty (or sue for statutory damages for copyright infringement) for making ephemeral copies under Sec. 112? My gut tells me that can’t be what Congress intended, but that might not matter is the law is otherwise unambiguous on this point.
The Complaint is here.
I recently read an article by Northwestern Law professor Peter DiCola entitled, “Copyright Equality: Free Speech, Efficiency, and Regulatory Parity in Distribution” 93 Boston University Law Review 1837 (2013) available here. Prof. DiCola offers an interesting take on the disparity between royalty rates and rate setting standards for different music distribution platforms: these disparities violate the First Amendment. How does Prof. DiCola reach this conclusion?
Unequal treatment, moreover, threatens freedom of speech and freedom of the press. The distinct features of each distribution technology represent several choices about what content will be available, in what sequence, with what user interface, and so on. For example, the playlists of AM and FM radio are vastly different than the playlists of webcasting services. By allowing some technologies, like traditional and satellite radio, to pay lower royalties, Congress is implicitly favoring the kind of content that those media tend to provide. By treating different media for music distribution unequally, both procedurally and substantively, Congress is shaping the public sphere and implicitly favoring some types of content over others. This violates the principles developed in two lines of First Amendment Supreme Court cases. Thus, the unequal treatment of the distributors of copyrighted works is not just arcane, bureaucratic, and complicated; it is also inefficient and a violation of free speech values. (page 1842)
Prof. DiCola compares the “distortion of consumers’ choices among [music distribution platforms] … [to] an unjustified tax or subsidy that favors certain firms or industries and disfavors others. One can think of the differential royalty rates in the music industry as analogous to farm subsidies, which have caused an overemphasis on corn and other “base crops.” In the music industry, copyright’s policy on music distribution has had the effect of propping up traditional and satellite radio while hampering webcasting and on-demand streaming. Congress, in short, has been picking winners in the music industry. (page 1841)
Prof. DiCola offers three ways in which these disparities can be reduced:
First, copyright should contain a general performance right in sound recordings to require AM and FM radio to pay royalties to sound recording copyright owners. This legislative change is necessary to achieve parity with all the other music distribution services. Second, Congress should direct the Copyright Royalty Board to determine the sound recording royalty rates for different types of radio – AM, FM, satellite, cable, webcasting, and on-demand streaming – under the same process and based on the same standard. Congress mandating equality of the process would not necessarily produce equal royalty rates, but it would ensure that any deviations from equality are justified. Finally, differences in substantive royalty rates resulting from this process should have a basis in substantial evidence that could survive heightened First Amendment scrutiny. (page 1895)
I found the argument very compelling.
In 1934, John Frederick Coots and Haven Gillespie wrote the song “Santa Claus Is Comin’ to Town.” They conveyed the copyright to Leo Feist, Inc., a prominent music publisher at the time. The copyright in the song was covered by the 1909 Act, which provided for a 28 year initial term followed by a second 28 year renewal term. In 1951, Coots and Gillespie entered into a new agreement granting Feist the renewal term, such that when the original term ended in 1962, Feist remained the copyright owner for the renewal term (until 1990). Coots’ heirs claim the song still generates $1mm per year in royalties, in which they share 25% (half of the half of the writers’ share).
The 1909 Act has been extensively amended over the years, beginning in 1976. Two significant changes involve (1) the duration of copyright and (2) the rights of authors to terminate transfers.
With respect to copyright duration, the 1976 Act provided for a term of 75 years for all works created before January 1, 1978, which would include Santa Claus Is Comin’ to Town. In 1998, the Sonny Bono Act the term was extended another 20 years, meaning Santa Claus Is Comin’ to Town enjoys a 95 year term–from 1934 to 2029.
The 1976 Act completely changed the way in which authors could regain control of their works. Rather than 2 separate terms, the 1976 Act has a single term, but a right to terminate any transfer after a certain period of time. For works created before January 1, 1978, Sec. 304(c)(3) of the Act provides for termination of any transfer of copyright ownership “can be effected at any time during the period of five years beginning at the end of the fifty-six years from the date the copyright was originally secured, or beginning January 1, 1978, whichever is later.” In this case, 56 years after 1934 is 1990. Because the Bono Act extended the term of copyright by another 20 years, there is a second termination provision in Sec. 304, which allows for termination to be effected “during a period of 5 years beginning at the end of 75 years from the date the copyright was originally secured.” But only where the author had not previously exercised a termination right.
Importantly, Sec. 304(c) has a recordation formality: a copy of any notice of termination must be recorded with the Copyright Office “before the effective date of termination, as a condition to its taking effect.”
On September 24, 1981, pursuant to Section 304(c), Coots sent Feist a notice to terminate the 1951 Agreement, selecting October 23, 1990 as the effective date of termination. On November 25, 1981, Coots’ attorney, M. William Krasilovsky sent the 1981 Notice to the Copyright Office for recordation. For you collectors of copyright trading cards, William Krasilovsky is the author of This Business of Music (now in its 10th edition), one of the most respected books on the music industry. However, on May 7, 1982, the Copyright Office sent Krasilovsky a letter, stating, “[p]ursuant to our telephone conversation of March 1, 1982, we are returning [the 1981 Notice] to you unrecorded.” Only Krasilovskywas copied on the letter. The 1981 Notice was never later recorded with the Copyright Office.
On April 6, 2004, Gloria Coots Baldwin, Patricia Bergdahl, and Christine Palmitessa (Coots’ heirs) sent EMI, which had purchased Feist, a termination notice (the “2004 Notice”), pursuant to Section 304(d) seeking to terminate Coots’ transfer effective in 2009 (1934 plus 75 years), EMI filed a motion for summary judgment on the grounds that (a) the 1981 termination was ineffective because the notice was never recorded in the Copyright Office and (b) the 2004 notice was ineffective because it was a second attempt to terminate a transfer, which Sec. 304(d) does not allow. Judge Scheindlin of the Southern District of New York agreed with EMI and granted its motion. Her decision is here.
Google Books and Rap Genius
Judge Denny Chin, formerly of the SDNY and now the Second Circuit, has issued his opinion in the Google Books case. (Judge Chin kept a few of his cases when he moved up to the appeals court.). For those unfamiliar with the case, in 2005 Google undertook to digitize entire libraries of books, scanning the entire book in optical text recognition format. Many of the books Google scanned were under copyright and Google never sought permission from copyright owners prior to making its digital copies. Several authors filed a purported class action suit against Google.
After Judge Chin rejected a proposed settlement in 2011, the parties filed cross motions for summary judgment, with Google arguing that its digitization of entire books as ‘fair use’ under § 107. Judge Chin agreed with Google and granted its summary judgment.
Because they typically are the most relevant in deciding a fair use claim, I focus on the first and last of the 4 fair use factors provided in § 107: whether the use is transformative and whether the use reduces the market for the original. Judge Chin found both of these factors weighed in Google’s favor.
Judge Chin determined that “Google’s use of the copyrighted works is highly transformative. Google Books digitizes books and transforms expressive text into a comprehensive word index that helps readers, scholars, researchers, and others find books. … The use of book text to facilitate search through the display of snippets is transformative.” Judge Chin compared Google Books to providing thumb-nails of images, citing approvingly Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007) and Bill Graham Archives v. Darling Kindersley Ltd., 448 F.3d 605 (2d Cir. 2006).
The display of snippets of text for search is similar to the display of thumbnail images of photographs for search or small images of concert posters for reference to past events, as the snippets help users locate books and determine whether they may be of interest. Google Books thus uses words for a different purpose — it uses snippets of text to act as pointers directing users to a broad selection of books.
Judge Chin focused on the fact that Google’s scanning “transformed book text into data for purposes of substantive research, including data mining and text mining in new areas, thereby opening up new fields of research.”
I wonder if Judge Chin would have made the same conclusion based on the scanning of a single book. Or even scanning several hundred books. It appears that his logic stems from the fact that millions of books were scanned, thereby enabling the searching that made the scanning transformative in the first place. This is at least suggestive that massive copying might be transformative, where limited copying might not be. As discussed below with respect to Rap Genius, I can imagine ways in which Judge Chin’s decision might influence business models that involve digitizing and indexing copyrighted works.
With respect to the last § 107 factor—the effect of the copying on the market for the original—Judge Chin concluded that “a reasonable factfinder could only find that Google Books enhances the sales of books to the benefit of copyright holders. An important factor in the success of an individual title is whether it is discovered … Google Books provides a way for authors’ works to become noticed, much like traditional in-store book displays.” Because “Google provides convenient links to booksellers to make it easy for a reader to order a book … there can be no doubt but that Google Books improves books sales.” I didn’t review the motions for summary judgment, so I don’t know if there was evidence (empirical or anecdotal) presented regarding Google Books actual impact of sales, but this seems like a pretty bold statement if it lacks evidentiary support. Given that many books were on sale prior to Google Books, it seems at least some evidence could have been presented showing either an increase or decrease in sales of particular titles after the introduction of Google Books.
For those who pay attention to this kind of thing, Judge Chin was the district court judge who originally granted summary judgment in favor of the copyright owners in the Cablevision case. Judge Chin’s decision was overturned by the Second Circuit in what became a bellwether for technology companies designing services that transmitted copyrighted works. Judge Chin was the dissenting vote in the Aereo case, where the Second Circuit upheld the principles articulated in Cablevision. I find it interesting that Judge Chin is so sure that services like Cablevision’s remote DVR and Aereo’s rebroadcast of over-the-air television transmissions are infringing technologies, while Google Books is not.
The Google decision is here.
So, what does Google Books have to do with Rap Genius? I recently read that Rap Genius has signed a license with music publisher Sony ATV. If you’ve checked out Rap Genius, you might wonder why it felt the need to get a license from a music publisher. I would argue it is a highly transformative service—a la Google Books. It is a searchable database of lyrics (though, unlike Google Books, it provides the entire lyrics, whereas Google Books only provides up to 90% of a text). But in addition to transcribing the lyrics, Rap Genius annotates the lyrics with possible explanations of what the writer meant. Rap Genius’ annotations include space for comments, so people can provide their own thoughts regarding the meaning of their favorite rap lyrics.
For example, check out Nas’ song “The World Is Mine.” I’ve listened to that song 100 times, and I love this line because of the way Nas emphasizes “PIPE” at the end – “The fiend of hip-hop has got me stuck like a crack pipe.” According to Rap Genius, this line either refers to “fans are fiending for his music, or if he himself is compelled to write rhymes.” Rap Genius also tells me that this line is a “subtle shout out to Nas’ one time mentor, Rakim who was known as the Microphone Fiend.” If Google Books is transformative—and all Google is doing is digitizing books—then Rap Genius should clearly be transformative—digitizing lyrics AND providing annotations.
All of this got me to thinking about a draft article by Ben Depoorter & Robert Kirk Walker’s called Copyright False Positives, an electronic copy of which is available at: http://ssrn.com/abstract=2337684. Depoorter and Walker argue that (a) the scope of copyright protection cannot be determined a priori, (b) copyright infringement entails statutory damages, and (c) defending copyright infringement claims is expensive. Because of these factors, copyright owners may over-enforce their copyrights, leading to “copyright enforcement false positives, where rights holders erroneously believe that their interests in a particular work extend beyond the bounds of what is actually protected. These false positives often “motivate copyright owners to seek enforcement of rights that are nonexistent or outside the scope of copyright. Such misguided enforcement actions impose significant social costs…”
Two of these significant social costs are obvious in our examples. First, in the Google Book case, Google had to spend millions of dollars litigating what a federal district judge ultimately determined was a fair use of copyrighted works. Second, in the Rap Genius case, the website took a license rather than risk the very litigation expenses Google was able to afford, even though Rap Genius’ use of the copyrighted works is arguably transformative. In both instances, society is worse off, but in one instance a publisher is better off.
Marvin Gaye’s estate has answered Robin Thicke’s declaratory judgment suit over Gaye’s “Got to Give It Up” and Thicke’s uber popular song “Blurred Lines” by filing counterclaims, including alleged infringement of additional Gaye songs, including the Marvin Gaye song, “After the Dance,” in the Thicke song “Love After War.”
Thicke’s own words were used against him, as Gaye’s counterclaim cited a May, 2013 interview Thicke gave GQ magazine in which he said,
Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got to Give it Up.’ I was like, ‘Damn, we should make something like that, something with that groove.’ Then he started playing a little something and we literally wrote the song in about a half hour and recorded it.
Thicke repeated this claim in a July interview with Billboard,
Pharrell and I were in the studio making a couple records, and then on the third day I told him I wanted to do something kinda like Marvin Gaye’s ‘Got to Give it Up,’ that kind of feel ’cause it’s one of my favorite songs of all time. So he started messing with some drums and then he started going ‘Hey, hey hey .. ‘ and about an hour and a half later we had the whole record finished.
Frankly, even a cursory listening makes it hard to argue these songs are substantially similar. The case reminds me of the Vanilla Ice initially claiming that “Ice Ice Baby” didn’t sample Queen / David Bowie’s “Under Pressure.”
The Gaye family alleges that EMI breached its fiduciary duty tp and obligations of good faith and fair dealing with the family by siding with Pharrell Williams, an EMI-affiliated writer and one of Blurred Lines co-writers. According to the Gaye family, Gaye’s administration agreement with EMI grants EMI the exclusive right to bring infringement claims, but when the Gaye family told EMI about the alleged infringement of Got to Give It Up, EMI refused to pursue a claim against Williams.
Among the nefarious actions alleged is the salacious claim that the chairman of EMI called a legal representative of the Gaye family suggesting that–notwithstanding the fact that Thicke had already filed his dec action against them–they not to pursue this action because Marvin Gaye’s children were “tarnishing” and “ruining an incredible song” (“Blurred Lines”) and”killing the goose that laid the golden egg,” The EMI chairman claimed that the Gaye family’s accusations that Blurred Lines was based on Gaye’s song was responsible for “Blurred Lines” not receiving an MTV Video Music Award and might kill any chances of “Blurred Lines” winning a Grammy Award for Song of the Year.
Based on these alleged breaches, the Gaye family is seeking to rescind its publishing agreement with EMI.
The counterclaims are here.
The 4th Circuit delivered a knockout punch in a copyright infringement claim against Mayweather, affirming a district court’s granting of summary judgment dismissing a songwriter’s claim for infringement damages.
Anthony Dash claimed that he wrote the composition of a song Mayweather used as a “theme song” during several appearances at WWE events and sued for infringement. Because Dash had not filed for copyright registration until after the alleged infringement, Dash was only able to seek actual damages under §504(b). The district court bifurcated the proceedings between liability and damages and Mayweather filed a motion for summary judgment that Dash was not entitled to damages. Dash responded by filing an expert report that listed four benchmark licensing fees paid to other artists for the use of their music at Wrestlemania XXIV. Based on those fees, Dash’s expert concluded that Dash “would have earned a maximal sum of $3,000 for the use of his musical composition.” Mayweather argued that Dash’s expert opinion was too speculative on which to base an award.
The 4th Circuit began by noting that “the primary measure of recovery is the extent to which the market value of the copyrighted work at the time of the infringement has been injured or destroyed by the infringement.” One measure of the fair market value is the licensing “fee the owner was entitled to charge for [the infringer’s] use” of his copyrighted work.” In order to recover, the copyright owner “must prove the existence of a causal connection between the alleged infringement and some loss of anticipated revenue.”
Dash’s expert attempted to determine what the license fee would have been by considering 4 songs that the WWE did license: 1 by the Red Hot Chilli Peppers, 1 by Fuel and 2 by Snoop Dogg. Dash’s expert concluded that, “[b]ased on these benchmarks, it is safe to conclude that [Dash] would have earned a maximal sum of $3,000 for the use of his musical composition.”
The 4th Circuit seized on Dash’s expert’s reference to the maximum amount Dash would have earned as evidence that Dash might not have earned anything. (“By referencing [Dash]’s maximal value—without any actual mention of a minimum value—[Dash’s expert] failed to satisfy this burden. Rather it appears to have concluded only that, to the extent [Dash’s work] had a market value, such value was no more than $3,000.”) The Court also concluded that the selection of benchmarks–representing licenses with well-known artists–were too removed from the unknown Dash to be reliable.
The Court then turned to Dash’e entitlement to WWE’s profits from using the work and noted that “in order to meet his initial burden under § 504(b), a plaintiff must not merely present proof of the amount of the claimed revenue streams, but must also provide “more than mere speculation as to the existence of a causal link between the infringement and the claimed revenues.” The Court noted that the causal link need to be direct–it must only be hypothetically possible. Here, Dash had stipulated that he had no evidence that the playing of his composition at Wrestlemania XXIV increased any of the WWE revenue streams. By making such stipulation, Dash admitted there was not even hypothetically possible to show the performance of his song created profits WWE would not have earned but for playing the song.
The decision is here.
As readers of this blog will recall, aging rockers Flo & Eddie filed three separate lawsuits alleging that Sirius XM has infringed certain state- or common law copyrights of a class of owners of sound recordings fixed prior to 1972. Sirius XM has filed a motion to transfer the California case, which was transferred from state to federal court, and the Florida case to the Southern District of New York. While this legal maneuver is relatively uninteresting, the motion does indicate at least one defense that is likely to feature prominently in this and the related case filed by the so-called “major” record companies, – titled Capitol Records, LLC et al. v. Sirius XM Radio Inc., No. BC520981 – in California state court raising similar issues: laches.
Laches, an equitable defense based on the doctrine of estoppel, is the unreasonable delay in pursuing a right or claim that prejudices the opposing party. According to Sirius XM’s motion,
Plaintiff apparently has become aggrieved by the distinction drawn by Congress in withholding copyright protection from its Pre-1972 Recordings; thus now, after decades of inaction while a wide variety of music users, including radio and television broadcasters, bars, restaurants and website operators, exploited those Pre-1972 Recordings countless millions of times without paying fees, it asserts a purported right under the law of various states to be compensated by Sirius XM for comparable unlicensed uses. Plaintiff’s multiple court filings constitute a form of lawsuit lottery in search of an elusive new state-law right that would radically overturn decades of settled practice.
The laches defense raises a number of interesting issues. For example, since at least the late 1980s, almost all terrestrial radio stations have used digital copies stored on servers to originate performances; i.e., the days of “disc jockeys” spinning vinyl have been gone for decades. Presumably, under Flo & Eddie’s complaint, these terrestrial radio broadcasters needed a license to make copies of Pre-72 recordings and, potentially, to perform them.
Terrestrial radio stations have been simulcasting performances over the internet for nearly 20 years, presumably implicating the right of performance by digital audio transmission that Flo & Eddie allege exist under certain state laws for Pre-72 recordings. Has SoundExchange, which collects and distributes royalties under certain statutory licenses for the public performance of sound recordings by digital audio transmission, been collecting royalties from these terrestrial radio broadcasters and remitting such payments to Pre-72 artists? Because federal copyright doesn’t apply to Pre-72 recordings, if SoundExchange were collecting such royalties it would owe the terrestrial radio simulcasters a refund. If SoundExchange hasn’t, why hasn’t Flo & Eddie sued terrestrial radio?
Flo & Eddie will undoubtedly respond that they had no way of knowing that they weren’t getting paid by Sirius XM until the most recent Copyright Royalty Board proceeding, at this pre-72 recordings were a significant issue.
[The allegations raised by SoundExchange against Sirius XM that Sirius XM was inappropriately deducting revenue from its royalty calculation to account for Pre-72 recordings are inapplicable in the context of a per-song royalty, where each Pre-72 recording can be identified and appropriately excluded from royalty calculations. Per-song royalties have existed since at least 2008.]
The motion is here.
In the aftermath of the copyright infringement litigation involving Hangover 2 and Mike Tyson’s face tattoo, the NFL Players Association is apparently urging players to obtain releases from tattoo artists to prevent future infringement actions.
According to this article in Forbes, the NFLPA is worried that this current batch of heavily inked players – some of whom use their art as their image – will encourage tattoo artists to sue the NFL, advertisers or video game makers for unauthorized reproduction of their art.
UK label Ministry of Sound has filed suit against Spotify, alleging that Spotify users are creating playlists that are identical to compilations created by MOS. Apparently, Spotify users are creating playlists that mirror MOS compilation albums, at times even using MOS in the name of the playlist.
According to the story in The Guardian, “The case will hinge on whether compilation albums qualify for copyright protection due to the selection and arrangement involved in putting them together. Spotify has the rights to stream all the tracks on the playlists in question, but the issue here is whether the compilation structure – the order of the songs – can be copyrighted.” That might be the case in the UK, but in the US I think the question is different.
The Copyright Act clearly protects compilations–a defined term in Sec. 101 (“A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.”). The question I have is whether Spotify can be liable for the playlists created by its users. This strikes me as a claim of secondary liability – since Spotify isn’t undertaking any volitional action in the creation of the playlist. There might be an opportunity to issue a DMCA takedown request, but Spotify actually has the rights to stream the songs in question.