Spotify in Songwriters’ Crosshairs Again

In July, two new lawsuits were filed against the streaming service Spotify, alleging willful copyright infringement on a “staggering scale.”  Publisher Bluewater Music Services and songwriter, musician, and producer Robert Gaudio (formerly of The Four Seasons) both accuse the streaming service of infringing the reproduction and distribution rights of songwriters by failing to obtain mechanical licenses for several thousand songs represented by the two complainants combined. 

In late August, Spotify filed a motion with the court alleging that the complainants were treating their service as though it were “a new Napster,” asserting that the complaints are unclear in their allegations, and, therefore, requested a More Definite Statement. Spotify further indicated that they are prepared to defend themselves if the complainants can more clearly articulate exactly what Spotify is supposed to have done.  States Spotify …

“Plaintiffs allege that Spotify “reproduce[s]” and “distribute[s]” Plaintiffs’ works, thereby facilely checking the boxes to plead an infringement of the reproduction and distribution rights. But Plaintiffs leave Spotify guessing as to what activity Plaintiffs actually believe entails “reproduction” or “distribution.” The only activity of Spotify’s that Plaintiffs identify as infringing is its “streaming” of sound recordings embodying Plaintiffs’ copyrighted musical compositions.”

The Gaudio and Bluewater complaints lay out a broad narrative that accuses Spotify of building a multi-billion-dollar business while knowingly exploiting thousands of songs over a period of years without obtaining mechanical licenses, hence the “don’t call us Napster” response from Spotify. The complainants further state that the $43-million settlement resulting from a class-action suit brought by David Lowery and Melissa Ferrick was little more than a slap on the wrist; that it amounts to $4 per infringement; that it provides no disincentive to continue infringing; and that the lion’s share of the money will go to the major labels anyway.

Further, with Spotify poised to go public, the complaints also cite the major labels’ agreements to exchange sound recording rights for equity in the streaming company. Gaudio/Bluewater describe these deals as an obstacle to the labels themselves holding Spotify to account for using unlicensed works. 

Counter to this narrative, however, Digital Music News reports that the music publishers represented by the National Music Publishers Association (NMPA) have “declared war on Spotify,” citing CEO David Israelite stating that Spotify’s assertions in its response mean that it is now in a fight with “all songwriters.”  What did Spotify say to trigger Israelite’s comments?  Well …

Despite the demand for a “more definite statement,” the Spotify brief is a bit cryptic itself.  It balks at some of the language in the Gaudio/Bluewater complaints, defending the company as an above-board, legal service that should not be compared to pirate sites et al. They may be protesting a bit much, though.  The “infringe now, settle later” strategy of which they’ve been accused is implicit in the Lowery/Ferrick suit and is certainly an approach consistent with most tech companies whose core business depends on the exploitation of creative works.

The only salient, triable issue at the bottom of all the rhetoric is the question ofwhether Spotify repeatedly infringed Sections 106 (1) & (3) of the copyright act by making use of songs without mechanical licenses.  To this, the Spotify brief comes extremely close to claiming that they don’t need mechanical licenses. The music site Complete Music Update published a whole article under exactly that headline, and the declaration was precisely what triggered the unequivocal response from Israelite at the NMPA.

Spotify has asserted that streaming only implicates the public performance right (§106(4)), which they state is amply covered by paying license fees to the performing rights organizations (PROs) that manage those rights.  Mechanicals are required separately—and obtained as compulsory licenses for rates set by a rate court—for anyone seeking to reproduce or distribute a song. For instance, an artist who wants to record a cover song on her new album needs a mechanical license.

While it may not be completely unreasonable to argue that streaming is a public performance rather than a distribution, that would only alleviate the infringement of §106(3).  It is not possible for Spotify to provide its service without reproducing files on its servers; and there is sufficient case law (including Napster) to affirm that this type of copying implicates the reproduction right (§106(1)). Moreover, as the CMU article observes, it is worth asking why, if Spotify believes it does not need mechanical licenses, the company settled the Lowery/Ferrick class-action suit, which was entirely based on the use of songs without mechanicals.

Additionally, Spotify’s mobile app enables downloading, at least for subscribers, and this would seem to implicate distribution.  Anticipating this response from the complainants, the Spotify brief bizarrely states that it would assert a defense of fair use.  Not only does that sound like a non-starter, but it’s a pretty odd thing to say after asserting that you never needed the mechanical license in the first place. 

As for the some of the more rhetorical aspects of the briefs, Spotify accuses Gaudio/Bluewater of “dangling” big money in front of the Ferrick class members and of painting the streaming service with the same brush as Napster and other piratical enterprises.  Meanwhile, Gaudio/Bluewater make an intriguing point that as Spotify continued to raise hundreds of millions of dollars for its growth, none of those resources were apparently directed toward improving the company’s ability to ensure the mechanical licenses were paid for all the music on the platform.

Based on Israelite’s statement, if Spotify doesn’t walk back the claim, this fight could turn existential for the streaming company. As a matter of copyright history, the transition to music streaming may be one of those threshold moments that ultimately requires Congress to recalibrate the statutes according to the intent of IP in the first place. Because if the courts were to agree with Spotify that mechanicals are simply not required for streaming, and we consumers do nearly all of our listening via streaming, this would undermine the incentive for songwriters and composers, which is foundational to the existence of copyright.

© 2017, David Newhoff. All rights reserved.

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