Back in 1999, two tech nerds named Shawn Fanning and Sean Parker upended the entire music industry with the launch of their peer-to-peer music sharing service Napster. All of a sudden, music consumers could get any song they desired for the price of “free.” In less than a year, Napster had over 20 million users. Napster obviously facilitated copyright infringement and the music industry responded strongly, fronted by the RIAA (Recording Industry Association of America) and high-profile artists such as Lars Ulrich from Metallica and Dr. Dre. By July of 2001, the RIAA’s lawsuit successfully shut down Napster.
While the music industry may have won the Napster battle, it looks like it’s still losing the digital war over free distribution of copyrighted property. According to the RIAA, record sales in the US have dropped 47%, from $14.6 billion in 1999 to $7.7 billion in 2009. Some studies have found that music piracy worldwide accounts for an economic loss of $12.5 billion year. Other studies claim that economic loss to the music industry is beside the point of copyright protection. As the argument goes, copyright protection exists to incentivize the creation of new works, and according to some analysts, high quality musical creations are still produced at high volumes even since the “Napster Revolution.”
While online piracy of digital music is a fairly obvious and high-profile example of intellectual property theft, artists and record labels stand to be highly compensated through means other than record sales. Whenever a bar plays a copyrighted song on a jukebox or a network covering a football game broadcasts a famous tune played by a marching band, royalties are owed to those that own the song’s publishing rights. But more recently, some in the music industry are waging a new war on a seemingly more innocuous strand of copyright infringers: lyric websites.
Leading this charge are Camper Van Beethoven, The Cracker frontman David Lowrey and the National Music Publishers Association (NMPA). The NMPA claims that websites that post song lyrics on their sites make revenue through ad sales, but none of these lyrics are licensed and no money goes to the copyright holders. Lowrey compiled a list of the 50 worst offenders. Number one on the list: Genius.com.
Genius, which was rebranded from Rap Genius in July of 2014 and raised $40 million in investor funding this spring, claimed that it stood apart from the other websites posting lyrics. As one of the founders Ilan Zechory put it “The lyrics sites the N.M.P.A. refers to simply display song lyrics, while Rap Genius has crowdsourced annotations that give context to all the lyrics line by line, and tens of thousands of verified annotations directly from writers and performers. These layers of context and meaning transform a static, flat lyric page into an interactive, vibrant art experience created by a community of volunteer scholars.” Now Genius is expanding their content beyond just music lyrics, hoping to be a forum for interactive annotation and discussion in the realms of literature, news, and scholarship.
When first confronted by the NMPA and Lowrey’s “take down” notice, Genius implied through the press that their use of the lyrics constituted “fair use” since it was being used for the purposes of commentary and criticism. The NMPA and Genius, however, have yet to make their arguments in court. Currently, Genius has begun entering into licensing deals with a number of publishing companies, thereby staving off a potential collapse to their business model. But the bigger issue may be whether artists and publishers are well served by being “copyright maximalists,” going after every threat posed to their intellectual property. The music industry may be better served by allowing consumers to freely interact with some intellectual property in a meaningful way, and potentially reap the benefits of that heightened interest through other avenues of revenue. Perhaps sites like Genius can help resuscitate the music industry in a way Napster never could.
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