Label Sues Spotify Because Some Of Its Users Create Playlists Of Authorized Music In The Same Order It Did

from the wait,-really? dept

Another day, another wacky copyright lawsuit. Ministry of Sound, the well-known nightclub/record label in London that puts together various compilations of dance music is suing Spotify, claiming copyright infringement in a case that will fascinate copyright fanatics. This one goes a few layers deep, so stick with it: MoS is not suing because the music on Spotify is unauthorized. Nor is it suing because of anything that Spotify itself did. Rather, it’s suing because some users of Spotify have put together and published “playlists” (a feature found on pretty much any music playing software ever) that mimic some of the compilations that MoS has released. Again, the music itself is all legally authorized and licensed to be on Spotify. The complaint from MoS is merely that some Spotify users have put them together in the same order. And this is somehow an outrage and copyright infringement:


Chief executive Lohan Presencer claims that his company has been asking Spotify to remove the playlists – some of which include “Ministry of Sound” in their titles – since 2012

“It’s been incredibly frustrating: we think it’s been very clear what we’re arguing, but there has been a brick wall from Spotify,” said Presencer.

While US law does cover some very loose copyright protection for “compilations,” UK law may be worse. As we covered a few years ago, there was a ridiculous case in the UK, in which a court argued that putting together a list of facts could create a copyright. The case involved football schedules, and the court ridiculously said:


“The process of preparing fixture lists involves very significant labor and skill in satisfying the multitude of often competing requirements of those involved,” Judge Christopher Floyd said. “(It is) not mere sweat of the brow, by which I mean the application of rigid criteria to the processing of data. The quality of the solution depends in part on the skill of those involved.”

It seems quite likely, that MoS is relying on this kind of language to make its argument, though I’d argue that all this case does is highlight just how ridiculous that original ruling is. Yes, there can be creativity involved in putting together a playlist, but that doesn’t mean it should receive a copyright.

And then there’s the entirely separate issue of secondary liability. Why should Spotify be liable for how its users group their songs together? Should Spotify actually be forced to police users and stop them from putting various combinations of songs together in a particular order? Does anyone actually think that’s a useful purpose for copyright?

Once again, we see what copyright is turned into: a tool for control and stopping what most people think is basic human activity. Putting together authorized, legal songs in a particular order? How could anyone think that should be infringing?

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Companies: ministry of sound, spotify

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Comments on “Label Sues Spotify Because Some Of Its Users Create Playlists Of Authorized Music In The Same Order It Did”

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79 Comments
Alt0says:

Re: Re: Re: Re: "S. T. Stone I can?t wait to see OOTB defend this."

And here I imagined:

a paragraph about how words placed in a particular order constitute the basis of a print copyright and how this is no different. That the actual order of the words is really more important than the words themselves. And an additional bit about how Google search results are copyrightable as well. and they will come get you if your search engine comes up with the same result order so we have to be ever vigilant regarding Google…yada yada…

JEDIDIAHsays:

Re: Re: Not just a good idea, it's the law...

in the us, copyright is ‘granted’ as soon as the work is created. The furthering of anything is not required.

Sure it is. It just gets commonly ignored like you are trying to ignore it right now.

A number of aspects of the US legal system tend to get regularly glossed over by people that find them inconvenient. This includes the idea that the US Constitution limits what the federal government is allowed to do and does not define (or limit) what an individual is allowed to do.

The legal language about copyright is very clear even if most people try to ignore it.

cradesays:

Re: Re: Re: Re: Not just a good idea, it's the law...

Are we allowed to copyright ideas? No only clearly defined content! Well, how about characters… Well ok maybe characters.. Will copyright expire after 50 years? Yes! what about mickey? Well, ok we’ll extend it.. Does copyright cover facts? No! Well, what if some big company wants it to just for dna sequences? Well I guess… Ok then, but just this once… Who is responsible when copyright infringment occurs? The infringer! But we can’t figure out who the infringer is… Well, ok, just blame whoever you want and we will figure out how to make it seem like it’s their fault. Do we need evidence? Yes! But getting evidence is hard… Well ok, we will make an exception..

arkielsays:

Re: Re: Re: Re:

Incorrect. In the US, copyright is granted only in furtherance of that underlying philosophy. Facts, obvious arrangements of facts, legal briefs, etc. are not subject to copyright despite being created because protecting them would not lead to more and better facts, arrangements of facts, or legal briefs.

The arrangement of facts can be copyrightable if it is novel, but I don’t think there’s actually much room for the requisite creativity in a CD tracklist.

JackHerersays:

Re: Re: Re: Re:

I think arkiel is refering to what is copyrightable. Copyright is granted when a work is created in the US and the UK. However there are differences between what can be considered copyrightable between the UK and the US and in the UK we also have “database rights”. I believe the post office claims some sort of intellectual property right over postal codes.

arkielsays:

Re: Re: Re: Re: Re: Re:

Registration is a good affirmative step to give notice of your copyright, but it is only necessary insasmuch as you can only claim attorney fees in the course of an infringement claim if the copyright is registered.

You can still assert copyright that isn’t registered, but yeah, you have to prove more and pay for the lawyer out of the damages awarded.

arkielsays:

Re: Re: Re: Re:

http://en.wikipedia.org/wiki/Moral_rights#In_the_United_States

This says something about moral rights in the US. Namely, they are not recognized. There’s also the Feist v. Rural decision (http://en.wikipedia.org/wiki/Feist_v._Rural), where obvious compilations of fact were found to not be subject to copyright.

And then there’s how the plain language of the Constitution has been interpreted (from http://en.wikipedia.org/wiki/Copyright_Clause):The Copyright Clause is the only clause granting power to Congress for which the means to accomplish its stated purpose are specifically provided. The exact limitations of this clause have been defined through a number of United States Supreme Court cases interpreting the text. For example, the Court has determined that because the purpose of the clause is to stimulate development of the works it protects, its application cannot result in inhibiting such progress.

Of those, those are just easy citations. I -got- all this from attending IP Survey and Copyright classes in law school.

Anonymoussays:

Re: Re:

  1. US law is not really following the constitutional definitions anymore. It creeps far further.
  2. Moral rights befalls the creater even if the economic rights are sold/leased. The rights have to do with preserving the integrity of the work from alteration, distortion, or mutilation.

    Since playlists with the same content as their albums is not truely a rework, the abuse should fall under the traditional copyright. Only moral claims that could be reasonable made here seems to be on wrongful attributions, but that does not seem to be their claim here.

    The relevant differences between US and UK in terms of copyright, has to do with precedence. In this case it seems MoS has a weak stand on some bad precedence in UK. Precedence is not universal. Every country has its own precedence even with equal formulations in laws.

Anonymoussays:

Part of the problem

The publishers, like MoS, are used to controlling everything that they publish. Note that they do not generate what they publish, just decide what works produced by other people will be published.
They do not seem to grasp the idea that someone could let creators publish without any vetting. Hence in their minds Spotify, Google etc. are responsible for what they allow on their sites; because they should be vetting everything.

out_of_the_bluesays:

You need to invent a word for "what copyright is turned into"!

Because that’s the problem. — Like me, Mike “supports copyright” in its true form. — Unlike me, Mike rants ONLY on the distortions of copyright! You’ll have to ask him to justify that: I’ve tried to get him to stop that and instead to mention once in a while the everyday good that copyright does for millions of people for whom it’s essential to gain from their work…


Mike is a professional troll: he has no visible purpose other than to gin up controversy to draw eyeballs.

out_of_the_bluesays:

Re: Re: Re: Re: You need to invent a word for "what copyright is turned into"!

@ “jackn”: “Seriously? Is it backwards day?”


No, Mike isn’t backwards: he’s SIDEWAYS! What he does here is exactly as I say: just puts this out with some pejoratives and questions, but NO actual statements. I’m not the only one who’s tried to PRY out a position from him. You’re only assuming he’s a pirate too, though he denies that and says he supports copyright, so logically, you must all think that he’s lying!


So what is Mike’s position on copyright? … Try to guess from this!
http://www.techdirt.com/articles/20130121/14473121743/global-hackathons-prepared-to-carry-forward-work-aaron-swartz.shtml#c377

Gwizsays:

Re: Re: Re: Re: Re: Re: You need to invent a word for "what copyright is turned into"!

You’re only assuming he’s a pirate too, though he denies that and says he supports copyright..

Blue, now you are being an idiot and misconstruing what Mike has said.

I don’t believe Mike has ever stated that he “supports copyright” at all. He has stated that he believes creators should be compensated in some fashion. Period.

But he has also stated many times that he doesn’t believe that our current copyright system is the best way or even a good way to do that. Especially with all the collateral damage it inflicts on even more important stuff, like Free Speech and privacy.

Just because you have a black and white view of copyright, doesn’t mean the rest of us can’t see all the shades of gray.

Gwizsays:

Re: Re: Re:2 Re: Re: Re: Re: You need to invent a word for "what copyright is turned into"!

Mike pays OOTB to make dumb, contrary comments in order to generate more traffic on Techdirt, because controversy brings eyeballs.

I highly doubt that.

Check out this recent comment of Mike’s to Blue, it almost seemed to drip with disdain.

https://www.techdirt.com/articles/20070215/002923/saying-you-cant-compete-with-free-is-saying-you-cant-compete-period.shtml#c140046

John Fendersonsays:

Re: Re: Re:4 Re: Re: Re: Re: Re: Re: You need to invent a word for "what copyright is turned into"!

If the whole goal is to generate hits, then a puppet “discrediting” the site isn’t important. The important part would be the controversy itself.

But Blue is so crazy that he presents nothing that approaches controversy, so he’d be a terrible way of generating traffic.

Nobody comes to this site because of Blue’s comments. They come in spite of them.

techflawssays:

Re: Re: You need to invent a word for "what copyright is turned into"!

I’m just gonna paste what the AC above wrote in reply to ankle-biter #1:

…and have you noticed that despite all the build up, despite all the hype, despite all of his previous posts regarding copyright…
OOTB comes up with ABSOLUTELY NOTHING to defend this issue.

Hey OOTB, second post on this and you still come up empty. Care to try again?

Anonymoussays:

Re: Re:

Arguably playlist rights could be called a subset of publishing rights. Either way it is a very weak claim. somewhat

If they allow it, I would like to hear the court do some math on random ordering of these playlists. The question is how alike a playlist needs to be to infringe and how exclusion of tracks or inclusion of other tracks influence the infringement.

The relevance of this ruling may be significant since playlists are already being sold today in a significant manner. If MoS wins, making playlists is going to explode into a business the former record companies will be good at monetizing. Unfortunately the chance of top40-radio playlists getting the same songs on them seems far too high given how only few singles make the lists and stay long enough for people to remember them. It is the same or worse for the more specialized genres. Copyright on any type of playlist would be extremely unfortunate given the math of “random” here being rigged.

cradesays:

Re: Re: Skills are copyrightable?

Theres a measure of creativity in everything. People are discovering that copyright (and patents, trademarks) gives them a dispropotionate amount of power, so naturally everyone and their dogs are trying to claim copyright on every creatively nailed nail, ever creatively repaired vehicle, every creatively manufactured strain of corn, every creatively discovered link of dna.

Anonymoussays:

such madness had led me to a conclusion

“The process of preparing fixture lists involves very significant labor and skill in satisfying the multitude of often competing requirements of those involved,” Judge Christopher Floyd said. “(It is) not mere sweat of the brow, by which I mean the application of rigid criteria to the processing of data. The quality of the solution depends in part on the skill of those involved.”

apparently the western copyright system is one nightmarish hp lovecraft novel.

PaulTsays:

Sad. Ministry Of Sound were always one of the most corporate of labels/clubs, but I enjoyed my time there and buying their compilations occasionally. That was a while ago though, they’re not as cutting edge and/or fashionable as they once were.

But, what’s being lost here? Are they seriously claiming that people would pay full price for one of their albums if Spotify wouldn’t allow them to create that playlist? That’s nearly ootb level delusion right there.

They could have a claim on the trademark angle, but that’s honestly just fans saying “I want to listen to the MoS playlist that’s not officially available on Spotify”. As ever, there’s an easy fix for that, even if it won’t pay for someone’s yacht…

cpt kangarooskisays:

Well, this is a case in the UK, but if it were brought in the US, I can’t say I’d have a big problem with it.

Compilations are eligible for copyright here, if they satisfy the usual requirements for a copyright. In this case, the main question would be one of creativity: does the selection of tracks and their arrangement involve at least a modicum of creativity?

They may or may not, depending on the particular facts at issue. E.g. alphabetical or chronological arrangement is not creative, and neither is having tracks next to each other when they were meant to be on the original album, such as how some Beatles or Pink Floyd tracks are meant to blend together. But having tracks in an order that embodies themes or counterpoints chosen by the compiler likely would be creative.

There are bigger problems with copyright, I don’t think this merits much concern.

PaulTsays:

Re: Re:

I disagree. First, merely ordering tracks is a silly thing to be able to copyright. I can create a random playlist in the same order with zero creativity or effort, regardless of how much work you personally put into it. Such a thing should not be copyrighted.

Plus it is definitely something to be concerned about. Labels are already foaming at the mouth about how Spotify and similar services aren’t paying purchase royalties for their rentals. They’re constantly trying to force them to pay undustainable and unjustifiable fees. This is just another backhanded way of screwing perfectly legal services through pure greed, from a label without the foresight to offer the playlists themselves. If they’re allowed to do this, these legal services get screwed out of existence, a poor result for consumers and labels alike.

cpt kangarooskisays:

Re: Re: Re: Re:

I can create a random playlist in the same order with zero creativity or effort, regardless of how much work you personally put into it.

Again, from a US perspective, sweat of the brow is irrelevant. It doesn’t matter if it takes a lot of effort to create, independently create, or reproduce a work, or if it takes no effort at all. The pertinent question is the creativity that goes into making it. (And mere reproduction doesn’t involve creativity anyway, so why did you even mention it?)

It’s already entirely possible, and commonplace to create anthologies of literature which are copyrightable compilations. Likewise, it’s possible to create copyrightable compilations of facts, such as a list of what are in your opinion the 100 best chinese restaurants in the country.

What makes playlists special that they cannot possibly be creative works?

This is just another backhanded way of screwing perfectly legal services

Meh. It’s the usual secondary liability issue so far as the service provider is concerned. Maybe with a little more information, depending on whether they had copies of the compilations at issue or not.

Besides — now it gives people both a reason to be upset with MoS and a tool to use against them: Anyone can create a playlist, so create a lot of them first, make sure that MoS is actually or likely aware of them so that they cannot claim independent creation, and then sue MoS for infringement. After all, you don’t need a license for the music or sound recordings just to create a playlist. So if you don’t want to get screwed, screw them back.

PaulTsays:

Re: Re: Re: Re: Re: Re:

“Again, from a US perspective, sweat of the brow is irrelevant. It doesn’t matter if it takes a lot of effort to create, independently create, or reproduce a work, or if it takes no effort at all.”

You misunderstand my point. I’m sure that it’s perfectly legal from a US point of view, but that wasn’t what I was questioning.

My point is, MoS are a rather commercially minded label, and most of their compilations are collections of club classics or current club floor fillers. So, the tracks in question usually don’t consist of a lot of original ideas. It would therefore be perfectly possible for me to feed a list of top club tracks into a random number generator and get the same list in the same order. No creativity required, and the list can easily be generated well before MoS even look at trying.

Creativity can be protected, as could a mix CD or something requiring more work. In my book, a list of tunes in the order DEBCA instead of ABCDE doesn’t deserve protection because it can be arrived at without any creativity at all before an MoS employee even starts their work.

“Meh. It’s the usual secondary liability issue so far as the service provider is concerned.”

The exact problem. Secondary liability because a user got the DECBA order instead of ABCDE? What a load of crap.

“Anyone can create a playlist, so create a lot of them first, make sure that MoS is actually or likely aware of them so that they cannot claim independent creation, and then sue MoS for infringement.”

This is perfectly possible, and frankly I’d hope they did this to point out how moronic the whole exercise is.

Don’t get me wrong, I’m all for creativity and even compilers getting money for their work where appropriate. But, they don’t deserve protection for merely listing things in a specific order.

It’s just another indication of how idiotic copyright has become and how trivial it is to break it. I do hope that they get mired in legal battles that cost them more than they could possibly gain, however. The first thought is this – OK, sharing playlists can be considered copyright infringement, but private playlists or just happening to play the tracks in the same order? Same result, fuck all they can do about it, and I hope they kill themselves trying if they’re that stupid.

Whatever the letter of the law, they stand to gain nothing by fighting this.

Martinsays:

EU database directive does not (normally) cover compilations on CDs

Interestingly the EU database directive says:

“as a rule, the compilation of several recordings of musical performances on a CD does not come within the scope of this Directive, both because, as a compilation, it does not meet the conditions for copyright protection and because it does not represent a substantial enough investment to be eligible under the sui generis right”

M. Alan Thomas IIsays:

Usually I don’t bother questioning forms of thin copyright. Having a theoretical right isn’t always the same as it being polite to use it, though, and the secondary liability problem is insurmountable either way.

Here’s my two theoreticals:

Collage artists and the like vs playlists: where do you draw the copyright line for assembling existing materials into a creative whole? Why is one a copyrightable assemblage and the other not?

Playlists vs very similar playlists: Could I get around this by inserting Prince’s “Segue” (four seconds of silence) into a playlist? If not, where do you draw the line for infringing similarity?

Looking at those, I think I’ll stick with playlists being copyrightable but only if identical. And then tell MoS that they’re being asses.

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