Guest post by Chris Castle
In the “it was only a matter of time” department, Wixen Music Publishing has sued Pandora over infringing reproductions of the lyrics in songs it represents. (For those reading along at home, Wixen is represented by badass David Steinberg, so good luck Pandora.)
All these cases against tech companies start with very similar facts–they were given a chance to fix the problem and they either entirely ignored the copyright owner (like David Lowery and Bluewater) or they obfuscated and tried to deflect blame, or did both.
Here’s the key fact from this Wixen case:
Plaintiff’s representatives put Pandora on actual notice of its infringing conduct in early 2018, yet Pandora did not even attempt to address its infringing conduct until May 2019, when it first purported to cease displaying some of the lyrics to the Musical Compositions on its service….Pandora’s infringement is therefore willful and deliberate.
In other words–Pandora apparently blew off its responsibilities for over a year and still didn’t fix the problem. Here’s a practice point–when Wixen or someone like Wixen calls, you need to fix your problem. Right. Now.
But this case raises an interesting side point that may indicate a likely waypoint down the trail. There is a company called LyricFind that licenses lyrics for many publishers according to their advertising. Wixen notes in the complaint:
Pandora may claim that it had obtained licenses to display the lyrics to the Musical Compositions from one or more sources, including an entity called LyricFind, the self-proclaimed “largest lyric licensing service” in the world, which claims that it “has licensing from over 4,000 music publishers, including all majors.” However, as Pandora knows, and has known, LyricFind did not have the authority to grant licenses to Pandora for the display of any of the lyrics to the Musical Compositions on its service.
How does Pandora know this? Probably because Wixen (and possibly other publishers) told them so. It’s entirely possible that Pandora has a license with LyricFind for the songs it represents, but if Wixen hasn’t authorized LyricFind to represent them for lyric licensing (which they evidently have not), then this is an irrelevant fact.
I have to believe until shown otherwise that LyricFind would be the first to tell their licensees that LyricFind does not purport to license all the lyrics for every song ever written or that ever may be written in any language from any songwriter or publisher in any country on the face of the Earth.
The problem seems to be the same problem that Big Tech has had with music from the beginning–the tech companies don’t want to have to confirm their rights because that involves human beings and human beings cost money. It’s this dismally poor administration of licenses by the licensees that seems to be the stumbling block.
However, it does make for interesting viewing to see exactly what was said by whom when about what, and what assurances were given. My bet is that the next step will be like the Music Modernization Act–a retroactive safe harbor with a blanket license and a statutory monopoly.
Read the Wixen complaint here.