Can Genius Really Win Its Lawsuit Against Google?

In 1991, the Supreme Court fielded a case about two warring phonebook companies in northwest Kansas. Rural Telephone Service Company Inc. refused to license its local information to Feist Publications Inc., so Feist went ahead and copied part of Rural’s phonebook. Rural shrewdly placed false entries in its directory, caught Feist in the act, and sued for copyright infringement. But despite Rural’s ingenuity, the Supreme Court ruled that the raw data collected in phonebooks were not copyrightable.

Phonebooks are long gone in 2019, but a similar situation arose this week: The site Genius, known for crowd-sourcing lyrics and annotations from listeners and occasionally artists, filed a lawsuit against Google, alleging that the search engine and its partner company LyricFind lifted verses and choruses wholesale from Genius without attribution or compensation. Much like Rural Telephone Service Company Inc., Genius came up with a neat ruse to help make its case: First, an apostrophe pattern concealed in song lyrics that spelled out “red handed” in Morse code (which is even older than phonebooks), then a spacing pattern that spelled out “genius.”

While the scenario is familiar, the legalese is different this time around.

Genius “alleges that by taking the content created on their site and misappropriating it and using it for commercial purposes, [Google and LyricFind are] violating the terms of use on their website,” explains Imraan Farukhi, an entertainment lawyer and an assistant professor at Syracuse University’s S.I. Newhouse School. On top of that, Genius’ suit accuses Google and LyricFind of “unethical and unfair anti-competitive practices,” which Farukhi says “can give rise to actionable legal claims” in New York. Genius demands at least $50 million from Google and LyricFind in compensation.

A representative for Genius declined to comment on the lawsuit, while a representative for Google referred Rolling Stone to a conciliatory, months-old company blog post. In an email, Darryl Ballantyne, founder and CEO of LyricFind, tells Rolling Stone that “we have not had any contact with Genius since June, and in fact, have not even been served with the complaint.”

“From what we’re reading online,” Ballantyne added, “[the suit] is completely frivolous and without merit.” (Genius did not respond to a request for comment on Ballantyne’s statement.)

But Don Gorder, an attorney and the chair of the music business and management department at Berklee College of Music, says Genius’ watermarking trap “is pretty clever.” “It looks like they do have a pretty strong case against LyricFind for lifting those lyrics and then, when putting those out through Google, violating their terms of service agreement,” Gorder continues. “Does that add up to $50 million [in damages]? That’s probably a stretch.”

Genius’ suit is a strange one — it’s about copying, but not about copyright. That’s because Genius and Google both license song lyrics from their owners (either publishing companies or songwriters) but then create the transcripts on their own. “It’s an odd industry practice that companies that are in the business of displaying lyrics are not actually getting the source material from the licensors,” Farukhi says. “They’re just transcribing those themselves.”

What’s more, Genius became a successful company thanks in large part to the unpaid work of tens of thousands of music fans who transcribe and annotate without any compensation. In what seems like a hypocritical turn, Genius is now accusing Google and LyricFind of doing a version of the same thing — benefitting from someone else’s work without paying for it. Not only that, Genius was forced to settle with the National Music Publishers Association in 2014 after the NMPA accused the site of using song lyrics without permission. No one would say that Genius is the perfect David to take a shot at Google’s Goliath.

“It looks like [Genius has] a pretty strong case against LyricFind for lifting those lyrics and then, when putting those out through Google, violating their terms of service agreement,” says one lawyer

But Genius’ suit could still be cutting, because it comes at a time when distrust of Google and other massive technology conglomerates is at an all-time high. In March, the European Union levied a third billion-dollar-plus fine on Google in three years; each penalized the company for anti-competitive practices.

The U.S. lags behind the E.U. in terms of regulating pretty much everything, but the political climate for big tech companies is no kinder stateside. Sen. Elizabeth Warren has made “break up big tech” a central tenet of her presidential campaign. And in a surprising moment of bipartisan agreement, even the Justice Department has opened an antitrust review of tech conglomerates, acknowledging that “without the discipline of meaningful market-based competition, digital platforms may act in ways that are not responsive to consumer demands.”

One man cheering Genius’ suit is Brian Warner, founder and CEO of the site CelebrityNetWorth, who has publicly accused Google of stealing his company’s work to debilitating effect. “When I was looking at Twitter yesterday, the first question was, ‘Why does Genius have the right to this?'” Warner says. “We need to all get over that. The bigger thing here is, Google cannot just look at what people are going to search for and scrape their own version to choke traffic off.”

Genius’ lawsuit accuses Google of cribbing lyrics as far back as 2016. When a curious listener searches for lyrics in Google, the first result to appear is a read-out from a partner like LyricFind. This not only pushes the link to Genius’ website further down in the search results — especially when users are on their phones — it renders the lyrics site mostly superfluous.

The suit filed by Genius claims it approached the search engine about the alleged plagiarism but was mostly ignored. So Genius took matters into its own hands, creating watermarks to help bolster its own investigation into Google’s behavior. “This is an interesting case because Genius had done so much due diligence in trying to confirm that LyricFind was providing Google improperly with content listed from Genius’ page,” Farukhi says.

This summer, Genius went public with its accusations in The Wall Street Journal, claiming that the apostrophe watermark had popped up numerous times in Google search read-outs. The search engine made a public display of concern, but Genius’ suit claims no substantive action was taken. The site accuses Google of offering “platitudes of ‘high standards’ and ‘best practices'” while “continu[ing] to exploit content misappropriated from Genius’ website.”

That exploitation allegedly wreaks havoc on Genius’ traffic. The company claims that when Selena Gomez released her new single “Lose You to Love Me” in October, 75 percent of the users who searched for the track’s lyrics were initially clicking through to Genius’ website. But then Google allegedly swiped Genius’ lyrics — the company says it detected its watermark in the search engine’s display box — and the click-through rate nosedived to five percent.

The suit “is pretty dramatic in showing how Google can drive the traffic to a website down,” says David Lowery, a prominent critic of big tech and lead singer of the groups Camper Van Beethoven and Cracker. (In the past, Lowery has been both a critic and a supporter of Genius.) “It illustrates how [Google] can act as a monopoly in certain cases — using their dominant search position and content scraping to maintain their status as the market leader by eating up other people.”

 “This is not a good look for Google when they’re getting re-examined for antitrust stuff” – David Lowery

Genius is far from the first company to accuse Google of this sort of anti-competitive behavior. Yelp, which also relies on user-generated content, has been in a years-long battle with the search engine; Yelp’s chief executive, Jeremy Stoppelman, took his case to Congress. So did Warner, who told the House Judiciary Subcommittee on Antitrust that Google’s decision to lift information from CelebrityNetWorth without consent devastated the site’s traffic, leaving Warner’s creation “treading water with cement blocks around our feet.”

In his testimony, Warner also described Google as “an $800 billion company that employs an army of lawyers, lobbyists, think tanks, and talking heads.” That’s part of why the tech company has continued to skate by despite repeated allegations of anti-competitiveness. Will Genius’ suit be any different?

“There are some questions as to the unilateral enforceability of a website’s terms of use,” Farukhi acknowledges. “But generally courts have said that terms of use are enforceable just like any other contract. Sometimes it depends on certain aspects of how reasonable it is that the users will know these terms exist and find them.” And while multiple lawyers contacted by Rolling Stone find it unlikely this lawsuit will ever reach trial, if it ever did, Genius’ use of watermarks “lend[s] itself to being persuasive evidence” of alleged theft.

Who would be held responsible for that theft? Genius is leveling separate claims against both Google and LyricFind. But “Google is saying, ‘It’s not us, we get our lyrics from LyricFind,'” Gorder explains. “I’m wondering if something will come forward where Google goes against LyricFind because they have some sort of indemnity agreement with them.”

Google also works with another third-party lyric provider, Musixmatch, which was not named in the lawsuit. Max Ciociola, CEO and founder of Musixmatch, says the company also takes a user-driven approach to lyric generation, much like Genius or Wikipedia. In contrast, “LyricFind is not a company known for having a community,” Ciociola says. “So they can’t really scale — we’re talking about 40,000 new tracks per day coming out. If you don’t have a community like Musixmatch or Genius, how can you add the content? There is only one way: scraping.”

In the end, the optics of Genius’ suit might be more valuable than the actual court case, since the company’s action continues to ratchet up public pressure on Google. “This is not a good look for Google when they’re getting re-examined for antitrust stuff,” Lowery says. “It’s not like the FTC would start an investigation because of this, but if they are gonna look into this stuff again, or if the Europeans are looking into this stuff again, it’s a really clear example of how Google can abuse its dominant search position.”

“Google is under fire for a lot of things,” Gorder concludes. “Genius is basically saying, ‘Hey! Us too.'”