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US Solicitor General urges Supreme Court to decline Genius v Google case

By | Published on Tuesday 30 May 2023


The US Solicitor General Elizabeth Prelogar last week urged the country’s Supreme Court to decline to review the Genius v Google legal battle, despite not entirely agreeing with the conclusion reached by the Second Circuit Appeals Court in that case.

In that legal battle, lyrics platform Genius accused Google of scraping content off its website and then plonking those lyrics into the info boxes that appear on the search engine when people search for specific songs.

Google insisted that it sourced its lyrics from its music industry partners and lyrics aggregator LyricFind, and would never sully itself by unofficially scraping other people’s websites. Though some clever placing of punctuation patterns within the Genius lyrics – which them allegedly showed up in Google’s info boxes – suggested something dodgy was going on somewhere along the line.

However, Genius had a problem once it decided to go legal. It doesn’t own the copyright in the lyrics it publishes – those rights belonging to songwriters and music publishers – so it couldn’t sue for copyright infringement.

Instead it sued for breach of contract, arguing that Google had connected to its platform and, in doing so, become bound by its terms and conditions. Which include a term that basically says nicking Genius lyrics for commercial use is not allowed.

However, Google countered that this was a big old copyright dispute, but without the involvement of a copyright owner. And US law stops Genius from pursuing a related breach of contract claim, it argued, because copyright law takes priority.

Along the way Google stated its core legal argument as follows: “Section 301 of the Copyright Act preempts common law claims that, inter alia, are ‘equivalent to any of the exclusive rights within the general scope of copyright’”.

The court hearing Genius’s lawsuit agreed with Google. As did the Second Circuit appeals court. Which is why Genius is now trying to get the US Supreme Court to consider its litigation and the lower court rulings on it.

In its filing with the Supreme Court last August, Genius stated: “Like countless internet businesses, Genius – an online platform for transcribing and annotating song lyrics – insists that visitors agree to its contractual terms as a condition for availing themselves of the benefit of its services”.

“These terms include the promise not to reproduce the contents of Genius’s platform”, it went on. “Google contractually bound itself to those terms, but, in blatant breach of that contract, Google stole Genius’s labours for its own competing commercial purposes”.

The Second Circuit Appeals Court, it then noted, “held that the Copyright Act preempts Genius’s breach-of-contract claim, under a provision that applies only to claims that are ‘equivalent to … exclusive rights within the general scope of copyright’. [However] at least five circuits disagree with this ruling and only one other circuit agrees”.

To that end, it asked the Supreme Court to answer this question: “Does the Copyright Act’s preemption clause allow a business to invoke traditional state-law contract remedies to enforce a promise not to copy and use its content?”

While considering whether to take on the case, late last year the Supreme Court sought the input of Prelogar. And she submitted a brief on the matter to the top US court last week.

According to Reuters, in that submission the Solicitor General actually criticises the Second Circuit’s conclusion that copyright law “categorically” bars contract claims that are based on a “promise not to copy” creative works.

However, the Supreme Court should nevertheless decline to review Genius v Google, she says, because it’s not clear that the lyrics platform can prove it ever had a valid contract with the search engine. She also adds that there is “little indication” that another appeals court elsewhere in the US would have handled the case differently.

Perhaps unsurprisingly, Genius is not impressed with Prelogar’s intervention. It’s legal reps continue to insist that it’s vital and increasingly urgent that the Supreme Court does review the ruling in its Google litigation. We await to see what the Supreme Court judges themselves now have to say.