Last week, Genius — a popular publisher of lyrics and other music-centric content — accused Google of anti-competitive practices with regard to its “information panels” for music content. If you’ve searched for a title of a song on Google within the last few years, you’ve probably noticed that the song’s lyrics populate in a prioritized box at the top of your screen. Along with the lyrics are links to stream the song on Spotify, Apple Music, and Google Play, and perhaps if available, a link to watch the official music video. Over the years, Genius’ reliance on the sale of advertising against traffic to its lyrics database has become less viable, as the site has seen a drop in traffic in recent years as a result of this change. Instead of a search result leading a user to Genius.com to view the lyrics, a user views lyrics on Google’s own whitelabeled lyrics engine and never clicks through to Genius’ site. Similarly, Google’s introduction of whitelabeled content and preferential treatment of its internal results “caused harm to many vertical competitors”; companies like Microsoft, Expedia and Yelp claimed their businesses were damaged by Google’s actions.
In claims first published by the Wall Street Journal, Genius claimed that Google was scraping its site and collecting transcriptions of lyrics it had created, and republishing those transcriptions on its own site. Genius claims that they had inserted uniquely formatted apostrophes throughout specific lyrics to identify which lyrics had been precisely lifted by Google and reappeared in Google’s search results for the specific song. The intention was to catch Google’s “copying” — and it worked. Genius additionally pointed to Desiigner’s “Panda” as tipping them off; although there were variations on the lyrics on many sites, “Genius had the definitive version because Desiigner himself provided his lyrics to the site.” According to Ben Gross’ comment in the WSJ article, Genius’ Chief Strategy Officer, Google’s version of the lyrics “matched [Genius’] lyrics down to the character.”
On its face, this allegation appears to suggest that Genius caught Google engaging in questionable behavior, but the claim is somewhat limited by Genius’ lack of rights over the lyrics. From its initial founding in 2009 as RapGenius, the company provided a collaborative lyrics database with fan and artist commentary. In some cases, RapGenius collaborated with artists, obtaining their insight on specific lyrics or asking them for help translating garbled lyrics. The site was, however, operating without permission from music publishers, the owners of the lyrics, and In November 2013, the National Music Publishers Association called out RapGenius for reproducing lyrics owned by publishers without permission. RapGenius’ initial response — highlighting the contextual annotations and “transformation”— suggested an attempt to claim fair use and distinguish RapGenius from true infringers. Nonetheless by mid-2014, RapGenius had settled on terms with the world’s largest music publisher, Sony ATV, and it looked like they had given up on any possible fair use defense for their “transformation.”
LyricFind, a Canadian lyric database that has operated under license from publishers for 15 years, responded to Genius’ claims on Monday indicating that they also licensed lyrics to Google and called Genius’ “accusations of wrongdoing... extremely misleading.” LyricFind confirmed that they license material to Google for search results and that they too had been approached by Genius with claims of some copied source material. The company indicated that those materials were instead available “on many other lyric sites and services,” contradicting Genius’ claims but offered to work with Genius anyway to remove any materials they considered problematic. Genius did not respond to that offer.
In December 2012, Google entered into a settlement with the FTC committing to cease its scraping of third party website content (such as user reviews and photos) to populate search results for categories of search “whose primary purpose [is] connecting users with merchants.” The agreement covered Google’s Flights, Hotels, Local, and Shopping results display and explicitly excluded “all other Google websites.” Google agreed to allow website owners the ability to opt out, and thus refuse to allow Google to “crawl” their sites. In 2017, when the settlement expired, Google committed publicly to continue to implement these promises.
Prior to the settlement’s expiration, Yelp released a public letter indicating that Google had broken its commitments — alleging specifically that “Google is scraping image content of local businesses posted by Yelp users and displaying this content as part of Google’s own local search results.” The distinction between the Yelp dispute and that with respect Genius is the origin of the content at issue; the Yelp platform can claim some level of ownership over the content on its site, while essentially Genius cannot. While Genius’ claims might fit the general gist of what Google promised not to do in 2012, Genius — as well as Google’s licensees — are licensing lyrics from the same source and thus any crawling occurring may be without practical consequence. Additionally, Google’s commitments did not cover music search results.
Scott Hemphill, a Professor at the New York University School of Law who teaches and writes about antitrust law, suggests that the claim is more likely to be a misappropriation claim grounded in tort law than something on the scale of the FTC’s purview — “this strikes me as a small claim compared to the other claims that have been levied against Google.”
That being said — as pressure ramps up on Google both publicly and vis-a-vis government regulation in the U.S. and abroad — there is no doubt that a news story like this will keep Google and its search engine in the spotlight. Even if this claim is relatively minor in scale, and may be without major legal significance, it points to Google’s overall strategy of consolidating search traffic away from competing sites and platforms, and toe-ing the line between simple search engine and multi-faceted publisher.
Jessica Meiselman is a lawyer and writer based in New York City.