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Ford accuses music library Freeplay of “bait-and-switch”, because its free music isn’t always free

By | Published on Friday 4 September 2020

Freeplay Music

Why would a company call itself Freeplay Music if people aren’t free to play its music? That’s what the Ford motor company would like to know. Whether or not that’s a strong legal argument with which to counter a copyright infringement claim is debatable. But, I suppose, it is an interesting question.

Freeplay Music is a production music library which sued Ford earlier this year, accusing the car maker of using tracks from its library in promotional videos online without securing the appropriate licences. Which, it adds, is full on wilful copyright infringement for which it would like statutory damages of $150,000 for each uncleared track that was used.

The music library was rather forthright in its legal claim back in April. “This is an action for wilful copyright infringement by a multibillion dollar company too cheap to secure licensing before commercially using registered works owned by another company”, it said in its lawsuit.

“As a worldwide company that is in the business of commercially advertising its automobile products via broadcast on the internet on a global scale, defendant knows it must obtain a licence to use other’s intellectual property … yet, it wilfully and consciously did not do so here on a breathtaking scale”.

Ford’s formal response to that lawsuit this week is similarly forthright. It presents two main defences. First, that the videos that allegedly featured uncleared music from the Freeplay library were produced by third-party affiliates in other countries and were specifically targeted to consumers in those other countries. Therefore, it argues, there’s no case for it to answer under American copyright law.

But most of Ford’s legal filing and counterclaim focuses on a second argument. The car firm accuses Freeplay of tricking people into thinking they can use its music for free and then following up with copyright claims when it turns out that’s not actually the case. This trickery, Ford argues, begins with the company’s name. After all, surely Freeplay Music is providing music that is free to play, right?

Well, actually, the “free” bit in Freeplay’s name relates to the fact that one of the firm’s services is to provide music for individuals posting videos to YouTube. And there is no upfront fee for using that music, with Freeplay instead claiming royalties from YouTube itself through the Content ID system. But, that service is limited to videos created by individuals on a non-commercial basis that are only posted to YouTube. Any other use of the same music comes with a fee attached.

However, Ford argues, that’s not especially clear when a company called Freeplay Music sells itself with the strapline “over 50,000 songs free for YouTube and more”, a headline pitch that appears on the firm’s homepage and in the Google listing that pops up when you search for “free music”.

For its part, Freeplay would likely argue that people making videos for brands ought to understand that music billed as “free” on the internet might not be “free” when used commercially. It would also point out that at the top of its website is a button labelled “pricing” which takes you to a page that sets out all the various use of its tracks and what they cost. Only a handful of uses are priced at $0.

Those would seem like decent arguments. Except, Ford argues, the clearly labelled pricing section on Freeplay’s website was added in 2018, after most of the videos Ford’s affiliates produced had been made. Prior to 2018, Ford alleges, the unfreeness of Freeplay’s free music was not so clearly sign-posted and was instead buried within some tedious terms and conditions.

Between 2010 and 2013, Ford says, “a user could simply download music directly from Freeplay’s website without agreeing to any licence. In the course of selecting and downloading songs, the user was never asked for payment or an agreement to pay in the future. Indeed, at no point in that process was a user required to read, much less agree to, any terms of use or given warning that Freeplay might demand $150,000 payment in the future for the user’s purportedly ‘wilful’ copyright infringement”.

While some changes were made to the site in 2013, “Freeplay’s deception of users continued”, Ford claims. “Upon information and belief, users lured by Freeplay’s representations of ‘free’ music for their YouTube videos continued to be able to download Freeplay’s songs without ever being prompted or required to read Freeplay’s terms of use or manifest any assent or agreement to the provisions therein. But only in the fine print of these so-called ‘terms of use’ did Freeplay purport to notify users that its music was ‘free’ only for certain uses”.

And while, since 2018, users downloading music from the Freeplay site have been obliged to accept the company’s terms of service, Ford says, “nonetheless, Freeplay continues its deceptive practices with its unqualified solicitation that its website offers ‘over 50,000 songs free for YouTube and more'”.

With all that in mind, Ford not only rejects Freeplay’s copyright infringement claim, but also accuses the music firm of false advertising. “The natural and proximate – and, indeed, deliberate – consequence of Freeplay’s misconduct has been the very copyright ‘infringements’ by which Freeplay purports to have been injured”, Ford goes on. “In reality, Freeplay seeks to earn a windfall from these ‘infringements’ through exorbitant settlement and litigation demands”.

“Freeplay’s victims learn that its promise of ‘free songs for YouTube’ was anything but only when Freeplay consummates its bait-and-switch scheme with an unexpected demand for payment, often for $150,000 in statutory damages for each downloaded song, based on the outrageous notion that the user’s unwitting ‘copyright infringement’ was ‘wilful'”, the car maker claims elsewhere in its legal filing.

So that’s all fun isn’t it? We await Freeplay’s response with interest. Meanwhile, the moral of this story is that when music is “free” it doesn’t mean it’s free so don’t assume it’s free because maybe it’s not free even though it’s free. Glad we got that sorted out.