During these joyous holiday times, thoughts turn to peace on Earth, goodwill toward all and, of course, data scraping.

The United States Supreme Court is presently deciding whether to review a Second Circuit case that gave Google a free pass to scrape the content from another business’ website. The business that got scraped (Genius Media Group, “GMC”) provides an online platform for music enthusiasts who transcribe song lyrics. GMC invested millions of dollars to build its technology and to attract its community of users. GMC properly licenses the right to display, from the copyright owners of the lyrics.

A company called LyricFind competes with GMC. Google contracted with LyricFind to supply song lyrics for Google’s “Information Box.” The Information Box appears before organic search results. So, if I searched Google for a particular song’s lyrics, and GMC was the top-ranked result, the lyrics themselves would first pop up in Google’s own Information Box and I’d have to scroll through that before even reaching the link to GMC.

We already mentioned that Google got the lyrics to populate its Information Box, from LyricFind. Want to guess how LyricFind got the lyrics?

Right. It scraped them from GMC’s website.

GMC sued Google and LyricFind (collectively, from here on, “Google”). Here’s what happened.

  • GMC sued Google in state court, for breach of contract (based on its TOU), unfair competition, and several other state law claims.
  • Google had the case removed to federal court, arguing that all the state claims were preempted by the Copyright Act; that the state claims were, in essence, copyright claims disguised as state causes of action.
  • GMC (all dialog fictional, to make this short): What? How could they be copyright claims when we don’t even own the copyright to the lyrics? We want the case sent back to state court.
  • Federal District Court: Nope. Google’s right. All of your claims, GMC, meet the test for preemption. They are nothing more than claims seeking to enforce the copyright owner’s exclusive rights.
  • District Court: Doesn’t matter. You licensed the right to display the lyrics, from the copyright owners, and that’s enough. And Google’s conduct, in connection with all of your claims, is conduct the Copyright Act prohibits and for which the Copyright Act provides remedies. The case stays here. And since all the claims are preempted, the entire complaint is dismissed. Buh-bye.
  • GMC appeals to the Second Circuit.
  • Second Circuit: Google wins.
  • GMC: What??
  • Second Circuit: Yeah. We interpret the preemption statute very broadly. It extends to works that might not even be copyrightable, and it extends to all claims that are equivalent to copyright claims. If you wanted to sue for breach of contract, your Terms of Use Agreement should have imposed more than just a promise not to copy the works – because that’s equivalent to a copyright right. Your TOU needed some “extra element” to take it outside of copyright equivalency and avoid preemption.
  • GMC: US Supreme Court, will you please make this right?
  • US Supreme Court (on December 12, 2022): Maybe. We just asked the US Solicitor General for a brief, to help us decide. We’ll be in touch.

Takeaways from GMC, So Far

  1. If your website contains content you worked really hard to obtain and organize, it’s vulnerable to being scraped.
  2. If you aren’t the copyright owner of that content, and you want to take action against the scrapers, you’ll need to rely on state claims.
  3. Your state claims, like those of GMC, could easily be preempted by the Copyright Act – leaving you with no claims at all.
  4. To avoid preemption:
  • Your Terms of Use agreement must be drafted with exquisite precision. Using some recycled TOU you found online is not going to cut it. You need laser-focused drafting, with the GMC case specifically in mind.
  • The complaint for your state claims must be drafted so there is an “extra element” under the laws of whatever Circuit you’re in, making the claim more than just a copyright equivalent.

Who Cares?

This isn’t some isolated issue relevant only to the purveyors of musical lyrics. It applies to any website that has information of commercial value to others.

Top of mind example? Funeral homes. Obituaries are routinely scraped and monetized.

Others? Ecommerce sites. Travel sites. Research. Photography. Aggregated blogs. Social media.

It’s a long list.