Genius Media Group Inc., the owner of the music lyric site genius.com has sued Google and LyricFind for “scraping” lyrics from the genius.com website. Two aspects of this new case (only a complaint so far) are interesting – the way that Genius established that Google was scraping, which is quite clever, and the basis for Genius’s legal claim which appears to be quite weak.
Assume you have a work that you want to protect from copying but that you can’t copyright. You might be unable to use copyright law because it’s a database or compilation that lacks sufficient originality. Or, perhaps you’ve licensed the components of the database and you don’t own the copyright in them.
This is the position Genius is in. Genius publishes song lyrics online. Many of these lyrics are crowd-sourced by the Genius user community. However, Genius doesn’t own the lyrics – it licenses the right to publish them from authors and publishers. So it owns a compilation of lyrics, but can’t assert a copyright in that content.
Since Genius has no copyright ownership, it tries to use contract law to prevent copying. It’s website contains the following terms of service:
“you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Genius Content, . . . In connection with your use of the Service you shall not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods.”1
However, Genius doesn’t require users to register with a unique user name and password – access to the song lyrics is open to all comers.
A couple of years ago Genius noticed that some song lyrics published in Google “Information Boxes” were suspiciously similar to Genius lyrics based on punctuation, contractions and line breaks. However, Genius couldn’t be sure that Google copied lyrics from its site and hadn’t acquired them somewhere else. This was complicated by Genius’s knowledge that Google licensed song lyrics from third parties, specifically LyricFind. If Google’s lyrics were scraped or copied from Genius in violation of the terms of service who was responsible, Google or LyricFind?
Here’s where the lawsuit gets interesting.
To determine whether the Genius song lyrics were being copied Genius laid two traps for Google and LyricFind. First, Genius embedded a pattern of straight and curly apostrophes in song lyrics, as shown at the right. Genius calls this “Watermark #1.” The “dot-dash” pattern formed by the apostrophes spelled out “red handed” in Morse code. Google and LyricFind were unlikely to notice this small deviation, and it would allow Genius to see if its lyrics were being copied. Using Watermark #1, Genius concluded that Google was using lyrics copied from genius.com, and that in some instances these lyrics were sourced from LyricFind. In other words, Google and LyricFind had copied and pasted the lyrics from genius.com either manually or using an automated scraper..2
Genius complained to Google, and disclosed Watermark #1 to Google to prove that Google was copying. However, according to Genius this was to no effect – Google continued to publish lyrics copied from genius.com.
Genius then laid a second trap based on a spacing pattern (Watermark #2). Genius’s complaint explains this as follows:
[Genius replaced] 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 . . ..
Again, it was extremely unlikely that Google or LyricFind would notice this if they were copying from genius.com, but Genius would be able to identify copying.
To make a long and somewhat complicated story short (again, see the complaint), based on its analysis of song lyrics published by LyricFind and Google, Genius concluded that both companies were scraping lyrics from the Genius website, although LyricFind appears to be the primary offender.
Case closed? Not yet – this only takes us to the second question in this case: did Google or LyricFind violate the law? Remember, Genius has no copyright in the lyrics.
The complaint is vague on this point. It states:
Per the Genius Terms of Service, “[b]y accessing or using the Service, you signify that you have read, understand and agree to be bound by the terms of service and conditions set forth below. . . . Registration may not be required to view content on the Service, but unregistered Users are bound by these Terms.
Based on this it appears that Genius is unable to allege that Google or LyricFind entered into a “click-wrap” agreement that would have bound them to these terms of service.3
The problem with this is that Genius may have a difficult time establishing that Google or LyricFind agreed to be bound by these terms and conditions.
Admittedly, the law of online contract formation is a mess. Companies regularly fail to take proper steps to create enforceable online contracts, and the court decisions (which are usually based on state contract law) are confusing and non-uniform. I’ve written about the difficulties online companies have creating enforceable agreements many times.4
And, cases are highly fact specific – courts carefully dissect and analyze web interfaces to determine whether users are put on notice of the website’s terms and have agreed to them. However, in this case Genius appears to be at the weak end of the law. Users are not required to enter into a click-wrap agreement to access lyrics, and the terms quoted above are accessible only via an inconspicuous link at the bottom of the screens. Nor are users warned that by using the site they are bound by the terms and conditions accessible via that link.5
This case has a lot of history, much of which is discussed by Mike Masnick on TechDirt here. Bottom line, Genius has been complaining to Google about lyric scraping for over two years, and apparently it’s been unable to get a satisfactory response from Google. Maybe this complaint is just Genius’s way of raising the volume on that process. And since it appears that Google sources/licenses almost all of its lyrics from LyricFind, Google will look to LyricFind to solve the problem and pay any (unlikely) damages.
It’s also worth noting (in passing) that Genius alleges that Google’s display of lyrics in Google Information Boxes ahead of genius.com links in response to search queries (greatly reducing the number of click-throughs to genius.com) is unfair competition under New York common law. However, this allegation rests on Genius’s ability to establish that Google breached a contract with Genius which, as discussed above, appears unlikely.
- Scraping involves extracting data from a website and copying it into a structured format. Scraping can be done manually but is typically done by a web robot or “bot.”
- You can read additional details (with multiple illustrations) about how Genius implemented Watermark #1 and a second watermark (discussed below) in Genius’s complaint.
- Confusingly, Genius adds a footnote to the factual allegation section of its complaint that reads: “Notably, Genius has been able to identify user accounts on Genius registered with email addresses associated with the corporate domains of both Google and LyricFind.” However, Genius does not allege that these accounts were used to scrape the Genius site, nor are these accounts referenced in the breach of contract counts of the complaint, where you would expect to see them if Genius was alleging that a representative of either company bound its employer to the terms.
- For example: Online Agreements – Easy To Get Right, Easy To Get Wrong (link); If Everything Is Conspicuous, Nothing Is Conspicuous: Forming an Online Contract in the First Circuit (link); Sloppy Online Agreements Costs Plaintiff Its Breach of Contract and CFAA Claims (link).
- In the Second Circuit (where the case will end up if, as I expect, it is removed to federal court), Genius will be faced with a body of case law unfavorable to it. The key precedents are Starke v. Squaretrade (2nd Cir. 2019)(link); Meyer v. Uber (2nd Cir. 2017)(link); and Specht v. Netscape (2nd Cir. 2002, Sotomayor, J.) (link).