After song lyrics website Genius sued Google in 2019 for allegedly breaching its terms of service by copying its lyrics transcriptions in search results, the United States Supreme Court invited the US solicitor general, Elizabeth Prelogar, to weigh in on how the US viewed the case. The question before Prelogar was whether federal copyright law preempted Genius’ terms of service, which prohibits any of its website visitors from copying lyrics for commercial uses.
Yesterday, Prelogar responded, filing a brief that sided with Google. She denied that Genius’ case was a good vehicle to test whether copyright law preempted state-law contract claims and recommended that the court deny Genius’ petition to review the case.
The key issue was that Genius’ terms of service may not be a valid contract because website visitors don’t have to directly agree to the website’s terms and may not even be aware they exist. Because of this, Prelogar said it was unclear whether any court would find that Google—or any visitor to Genius’ site—ever agreed to not copy the lyrics. Reviewing Genius’ arguments, Prelogar said that the Supreme Court should not review the case because “there is little indication that any other court of appeals would reach a different outcome in this case.”
A Google spokesperson told Ars that Google continues to dispute Genius’ claims it copied song lyrics.
“The Solicitor General and multiple courts continue to find that Genius’ claims have no merit,” Google’s spokesperson told Ars. “We include lyrics in search results to help you quickly find what you are looking for. We license the lyrics text from third parties, and we do not crawl or scrape websites to source lyrics.”
Ars could not immediately reach Genius for comment.
Genius’ “atypical” arguments against Google
On Genius’ website, lyrics are transcribed either by music fans or are obtained directly from the artist. For all lyrics on its site, Genius pays copyright holders for licenses to display the lyrics, and Genius profits by placing ads next to transcriptions of popular songs.
According to Prelogar’s brief, Genius argued that Google had “substantially reduced the number of visits” to its website and “significantly” decreased its advertising revenue after Google started displaying lyrics in information boxes in search results in 2014.
Google disputed this claim, saying that it obtains lyrics displayed in search results from LyricFind and confirming that both Google and LyricFind also hold licenses to display lyrics.
Setting aside the question of where Google gets the lyrics displayed in search results, the court considered whether or not Google, simply by visiting Genius’ website, had entered “a binding contract not to display, distribute, or copy its lyric transcriptions for commercial use,” Prelogar wrote, and if it had entered a binding contract, whether Genius’ breach of contract claim was any different from a copyright claim because both claims concern copying song lyrics.
An appeals court had decided that “[i]f the promise in a contract amounts only to a promise to refrain from reproducing, performing, distributing or displaying the work, then the contract claim is preempted,” and Prelogar agreed.
“Petitioner’s own breach-of-contract claims are atypical,” Prelogar wrote, “because access to petitioner’s website is not conditioned on any express promise to abide by petitioner’s terms of service, and petitioner does not contend that respondents made any such express promise here.”
Had Google or other Genius visitors been required to agree to the terms of service upon visiting the website, Genius might have had a better case. Prelogar provided an example where a hypothetical video rental store’s contract claims would likely not have been preempted by copyright law if its customer had signed a contract to rent a movie and agreed not to copy the movie, but then did it anyway.
That hypothetical case would have been a “better vehicle” for the Supreme Court to settle a still-debated question of whether state contracts are preempted by copyright law, Prelogar said. But Genius, in its lawsuit against Google, “does not allege that respondents explicitly promised not to copy the lyric transcriptions on petitioner’s website,” Prelogar wrote, and “it is uncertain whether New York courts would find that an enforceable contract exists.”
Although Genius has yet to comment on Prelogar’s brief, the lyrics website previously warned the court that siding with Google could fuel further efforts by Big Tech companies to steal aggregated user-generated content from popular websites like Genius, Wikipedia, or Reddit, Reuters reported.