The music industry is going after Rap Genius — and the law is on its side

November 12, 2013

The National Music Publishers Association is raining on yet another parade, and this time Rap Genius and 49 other lyrics sites are in its crosshairs.

The ever-litigious industry group sent takedown notices to 50 lyrics sites that publish the words to songs without paying for them. They would like the sites to either pay for the rights to the lyrics or take them offline, NMPA told Billboard. Per the group, more than 5 million searches for “lyrics” go down everyday on Google, and half of those searches lead to unlicensed sites.

This raises a lot of questions for the Google generation, who grew up expecting to find anything online. Is Rap Genius — which doesn’t just reproduce lyrics, but offers community-powered and hyper-specific line-by-line explications of songs — doomed? Am I violating copyright when I make “Wrecking Ball” my Gchat status? We called up E. Michael Harrington, a professor of music and entertainment law at the Berklee College of Music, to lay out the issues. This transcript has been edited for space and grammar.

So let’s start with the big question: How legit are these takedown notices? Who has the law on their side?

Well, the law does provide the copyright holder the right of duplication — so the copyright-holders have the law on their side. It’s too bad, though, because these sites do a service for people. Rap Genius especially — I was just on it yesterday. But recording labels tend to respond in thuggish ways, either ignoring the problem until they can’t anymore, like they did with Napster, or litigating. They don’t know how to be reasonable. [Note: To be clear, recording labels aren't involved in this round of takedown requests.]

How else could the industry have responded, short of sending these takedown notices?

They could approach the sites differently — ask how they can work together, charge a reasonable fee. Don’t get me wrong, of course the creator should get money for his work, especially when lyrics sites are making money from advertising. I don’t really know how much money is at stake here, but I can imagine the fees are pretty high.

What about a site like Rap Genius, that adds so much value to a lyric. Isn’t that transformative enough that copyright doesn’t apply?

Probably not. I would be happy if the court said that, but I wouldn’t expect them to. There’s this idea of a “derivative work” — something that’s derived from the original and couldn’t exist without it. The copyright holder still has to give permission for that. In “When Harry Met Sally…,” there’s a scene where they talk about “Casablanca.” It’s only a 30-second conversation. But they couldn’t have that 30-second conversation without “Casablanca,” so they had to have permission from the movie’s copyright holder. If you watch the credits you’ll probably see something about that.

Doesn’t fair use kick in somewhere?

Yes, fair use is always the counterargument, that’s the only way you can ignore copyright law. That’s why you can review a movie in the paper without permission — that’s fair use.

What makes something fair use?

So there are four factors. One is the nature of the work you’re borrowing from — is it a newspaper? A song? If it’s nonfictional, like a newspaper article, it’s more okay than fiction. The second is, why are you doing it? If it’s educational, or it’s for a nonprofit, that’s also more okay.

Then the third one is a big one: How much are you taking — in terms of quantity and quality? If you take a couple chords from a song, maybe that’s not significant, but if you take the chorus it is. There was actually a case like this with Gerald Ford’s biography, where a paper printed some excerpts from it before it was published — but they were all the best excerpts! The court ruled, Yeah, you didn’t take much, but you took all the best parts.

And then finally, they ask if the new thing is going to hurt the market for the original one. It’s a sensible standard. Of course everything draws from something else. But it’s hard to say a lyrics site is fair use when the entire lyric is up.

This isn’t the first lyrics-site case, either — publishers won $6.6 million in damages from LiveUniverse last year. Do you think more are coming?

Probably. The content people are still reacting to the Internet in a really hostile way. If they had their way we wouldn’t have iPhones or iPods. I mean, the entertainment industry kept the VCR off the market for seven years, until 1984, because they claimed it could lead to copyright infringement and hurt the movie industry. That case was called Sony v. Universal. In the end, the VCR was a win for them — imagine if it had stayed off the market. In the end, the technology always wins. As it should. New technology ruins business as usual, until it is business as usual.

So you almost see this as more of a cultural conflict than a legal one.

I hadn’t considered that I was being more cultural than legal, but you’re right — I am. I fall on the side of those who acknowledge a debt to our past and present and feel freer to use prior and contemporary sources.

Their side is wrong because they fear new technology. Historically, if you go back a century, every new development has been a new problem. Just think of cars — way more people die because of cars than died because of horse-and-buggies. But in the end, it’s better to have cars. That change is going to happen. That’s just how it is.

Caitlin Dewey runs The Intersect blog, writing about digital and Internet culture. Before joining the Post, she was an associate online editor at Kiplinger’s Personal Finance.
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