December 13, 2005 | By Fred von Lohmann

Lyrics Browsers, iTunes and Copyright Law

When I buy a CD, I look forward to having the lyrics printed in the liner notes. That's part of what I expect in exchange for my money. If the record label omits the lyrics, I feel I'm entirely within my fair use rights to listen closely to the recording and copy down the lyrics. Similarly, I'm within my fair use rights when I use a search engine to find the lyrics of the music I've legitimately purchased. And thanks to Apple's iTunes software, I now can add those lyrics to the digital copies of the music I've purchased and have them appear when the song plays on my iPod.

Apparently, at least one music publisher thinks that makes me a music pirate. Yes, annotating music I've legitimately purchased with lyrics makes me a pirate, according to music publishing giant Warner/Chappell.

Warner/Chappell sent a cease & desist letter last week to the developer of pearLyrics, a piece of software that automates the process of adding lyrics to iTunes tracks. (For more details, see the MacWorld review.) The developer is apparently located in Austria, and I cannot comment on how Austrian law might apply.

But Warner/Chappell doesn't have a legal leg to stand on here in the U.S., and EFF is sending an open letter to them today to caution them from using their legal threats to chill American software developers and music fans. (Text of the letter below, after the jump.)

Much of the commentary on the pearLyrics controversy has been focused on unauthorized, commercial, ad-supported lyrics websites. The legal status of those websites, however, has nothing to do with legal threats aimed at software like pearLyrics, which plainly do not induce or contribute to the activities of those websites (in fact, to the extent that pearLyrics eliminates the ads, music publishers should support it!). Instead, Warner/Chappell's threats are premised on the notion that pearLyrics is secondarily liable for the activities of music fans who use pearLyrics. In other words, their argument is premised on the idea that it's illegal for me, the individual music fan, to add lyrics annotations to my legitimately acquired music.

I guess we're all supposed to pay extra if we want to know what the words are?

Jane Dyball
Senior Vice President, European Legal & Business Affairs
Warner/Chappell Music Group Ltd.
The Warner Building
28 Kensington Church Street
London W8 4EP
UNITED KINGDOM

Dear Ms. Dyball:

I am writing regarding the cease & desist letter recently sent by Warner/Chappell Music Ltd. to Walter Ritter, the developer of the pearLyrics software program. In your letter, you threaten him with legal action, alleging that he is liable for copyright infringement for developing a tool that ?enable[s] the reproduction and downloading? song lyrics.

It is our understanding that Mr. Ritter resides in Austria. Although EFF takes no position regarding how Austrian law might treat this matter, we note that you also dispatched a copy of the letter to Kevin Saul, counsel for Apple Computer in the United States. Warner/Chappell representatives have also suggested in the press that Warner/Chappell may be preparing international enforcement actions relating to song lyrics.

We write today to inform you that the distribution of software such as pearLyrics does not violate U.S. copyright law and that any legal threats by Warner/Chappell against U.S. software developers in connection with software similar to pearLyrics could expose Warner/Chappell to legal action in U.S. federal courts.

As you know, Apple?s iTunes software includes a ?lyrics? field for every digital song file, permitting users to add lyrics to song files purchased from the iTunes Music Store or copied from CD. Lyrics can then be displayed when the song files are played on certain iPods. It is our view that this activity?annotation by individual music fans of legitimately acquired music?would be viewed as a ?fair use? under U.S. copyright law. At a minimum, we know of no legal authority suggesting that such personal, noncommercial copying of lyrics constitutes infringement.

According to MacWorld magazine?s January 2006 issue, as well as the pearLyrics website, the pearLyrics software simply assists users of iTunes to populate this lyrics field, relying on lyrics data maintained by third parties (either locally stored or on websites). Insofar as the activities of individual music fans who annotate their music files with lyrics is noninfringing, there can be no secondary liability on behalf of a developer of similar software under U.S. law. Even assuming that some uses of pearLyrics might infringe the rights of your clients, it is clear in U.S. law that secondary liability will not lie against the software developer so long as the software is ?capable of substantial noninfringing uses.? Sony v. Universal City Studios, 464 U.S. 417, 442 (1984). To the extent that personal, noncommercial annotation of legitimately acquired digital music files constitutes a noninfringing fair use, then it appears clear that the principal, intended use of pearLyrics (or similar software) is noninfringing under U.S. law, thus easily satisfying the standard set forth in Sony v. Universal City Studios.

Nor does the recent U.S. Supreme Court decision in MGM v. Grokster, 125 S.Ct. 2764 (2005), support your position. That decision recognized that secondary liability may lie where a software distributor induces or encourages infringing uses of its product. Insofar as personal, noncommercial annotation of legitimately acquired digital music files constitutes a noninfringing fair use, there is nothing unlawful about inducing or encouraging music fans to engage in that activity.

In light of the foregoing discussion, we warn Warner/Chappell against making any legal threats similar to those leveled against Mr. Ritter against any U.S. software developers who may develop products similar to pearLyrics. Such threats could expose Warner/Chappell to a declaratory judgment action from either the software developers or the music fans who use the software in question. See Newmark v. Turner, 226 F.Supp.2d 1215 (C.D. Cal. 2002).

Furthermore, in your letter to Mr. Ritter, you threatened to communicate your infringement allegations to his internet service provider (?ISP?). Any similar action in the United States against developers of software similar to pearLyrics may expose Warner/Chappell to liability under 17 U.S.C. ? 512(f), insofar as it constitutes a knowing misrepresentation as applied to noninfringing activity.

Sincerely,

Fred von Lohmann
Senior Intellectual Property Attorney

Cc Kevin Saul, Associate General Counsel, Apple Computer
David Israelite, President & CEO, National Music Publishers' Ass?n
Edward Pierson, Executive VP Legal & Business Affairs, Warner/Chappell USA


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