Google Books “Fair Use” Decision Could Aid Rap Genius

Last week was interesting for news about the evolving relationship between copyright law and the Internet. On Tuesday, lyric-annotation website Rap Genius was hit with a takedown notice from the National Music Publishers’ Association (NMPA) because it lacked a licensing agreement to reprint lyrics. Then on Thursday, a judge handed down a decision in the long-running copyright lawsuit filed against Google by the Authors Guild over the tech company’s book-scanning Google Books service. In short, Google prevailed when Judge Denny Chin ruled that their service was “transformative,” and the book-scanning and posting of book-snippets would be protected under the fair use component of US copyright law.

The decision got me thinking: could Rap Genius use this decision should the company be taken to court by those who owned the rights to the lyrics it reposted online?

“The very short answer is yes,” says Britton Payne, an attorney with Bronson Lipsky LLP and a professor at Fordham Law School who teaches the “Copyright, Trademark and Emerging Technologies” course. “The Google Books decision will primarily help Rap Genius. It’s a different service, so in the ways that it differs, it does not help—but that doesn’t mean that it hurts.”

According to Payne, Judge Chin’s decision found that Google Books’ service of scanning books and posting searchable snippets wouldn’t “hurt the seller in an unfair way,” or harm the original rights-holders and publishers of the original works. Because the new service could help people discover and connect with content in new ways—and because Google would link to various buying options for that content—the service actually helped. Google Books provided an indexing service for both the rights-holders and potential customers, which is seen as a public good. The question, then, is whether Rap Genius’s reposting of lyrics could be considered a similar kind of indexing.

“What is the marketplace for lyrics?” Payne asked. “One is listening to the song. If I just have a website that presents lyrics, it’s hard to think that that is a market replacement for the song. It’s a different experience. It’s part of the song.”

Rap Genius also offers links to places to buy songs, but because the site also tends to include a music player at the bottom of each song entry, it raises questions about whether or not it’s helping the sales of the original rights holders, or hurting them for providing access to the song free of charge.

But over the weekend, news broke that Rap Genius had in fact signed a licensing deal with Sony/ATV music earlier this year—helping to make the company appear as though it’s willing to work with rights-holders rather than simply try to skirt copyright law and apologize for it after being called out.

While the deal is a sign that Rap Genius wants to play nice and avoid litigation, it also opens the door to questions about the lyrics it posts that aren’t licensed.

“It is kind of a dangerous game, right?” said Payne. “Because if you start to pay for license fees, it implies that you should pay for license fees.

“It implies that, yeah, there is a marketplace. People buy lyrics. We’re not proposing some kind of magical maybe licensing scheme for lyrics. It’s real.”

For now, it looks like the Google Books case has changed the landscape of where copyright intersects with the web—but in the meantime, Payne says that licensing with rights-holders will always be “the path of least resistance.” And it looks like Rap Genius is more than happy to follow that path.