Remember Wixen Music Publishing sued Pandora over Lyricfind’s purported license for song lyrics. The case is being heard in Los Angeles before District Judge Stephen V. Wilson. (If that name rings a bell, he was the trial judge in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster.)
Specifically, Wixen makes this allegation in paragraph 5 of the complaint (my emphasis):
Pandora may claim that it had obtained licenses to display the lyrics to the Musical Compositions from one or more sources, including an entity called LyricFind, the self-proclaimed “largest lyric licensing service” in the world, which claims that it “has licensing from over 4,000 music publishers, including all majors.” However, as Pandora knows, and has known, LyricFind did not have the authority to grant licenses to Pandora for the display of any of the lyrics to the Musical Compositions on its service.
Pandora has now answered Wixen’s complaint, which is pretty much the typical “we deny everything those guys said” type approach with one exception that caught my eye. It could be nothing, but it is an odd phrasing to me.
In response to paragraph 5 of Wixen’s complaint, Pandora responds to Wixen’s allegations (also in paragraph 5 of the Answer, my emphasis):
The allegations of Paragraph 5 [of the Complaint] contain speculation and conclusions of law to which no responsive pleading is required. To the extent a response is required, Pandora: (i) lacks information and belief as to the allegation that LyricFind is “the self-proclaimed ‘largest lyric licensing service’ in the world, which claims that it ‘haslicensing from over 4,000 music publishers, including all majors,’” and on that basis denies such allegation, (ii) lacks information and belief as to whether LyricFind had the “authority to grant licenses to Pandora for the display of any of the lyrics to the Musical Compositions on [Pandora’s] service”, and on that basis denies such allegation, and (iii) denies the remainder of the allegations of Paragraph 5.
Maybe this is a nothing issue and maybe I am over-thinking it. God knows this would not be the first time that happened. However, I do find it an odd phrasing.
Wixen’s allegation was that Pandora knew that LyricFind did not have authority to grant Pandora the rights to Wixen-represented songs. How might Wixen think Pandora “knows and has known” LyricFind did not have the rights? A simple explanation might be because Wixen told them so, and probably told them so more than once. In fact, I would not be surprised if Wixen told them so repeatedly while Pandora disregarded Wixen and continued to exploit the song lyrics at issue. (And this is the primary reason these companies get sued in my experience.)
Note that there is no qualifier on this allegation by Wixen such as “on information and belief” which usually means that the speaker is not speaking from first hand knowledge, but rather something they have been told and that they believe at the moment of utterance. This is kind of like saying “our client informs us that….”
Pandora’s response is not “we have a contract with LyricFind in which they represent they have the rights” or better yet, “LyricFind has provided Pandora with the underlying license from Wixen demonstrating that they have the rights.” Remember, this is arguably a core issue in the Wixen case, if not the core issue: Did Pandora reasonably rely on their license with LyricFind that represented that LyricFind had the rights to Wixen’s catalog? Or, did Pandora have actual knowledge that LyricFind did not have the rights to Wixen’s songs?
At this point, it is hard to know the answer to either of these questions definitively. But–it does seem that if LyricFind did have the rights, and assuming LyricFind’s license to Pandora was otherwise solid, isn’t it kind of game over at that point? Wouldn’t you think Pandora would be screaming it from the rooftops?
Instead, Pandora seems to be saying it lacks first hand knowledge of what authority LyricFind had to grant rights to Pandora, and on the basis of their lack of knowledge denies Wixen’s allegation (the apparent antecedent of “that basis” in the Answer). Which I guess means that they haven’t asked LyricFind, and that’s kind of the dog that didn’t bark. Wouldn’t you think they’d make it their business to find out? Perhaps even long ago? But to put a bit finer edge on it, perhaps a bit uncharitably, can you ever find what you don’t look for?
Wixen, of course, can very likely discover through a subpoena or deposition what communications exist between Pandora and LyricFind on this issue, so if they did talk about it, it’s only a matter of time until it comes out, unless they can somehow keep those communications from discovery which I doubt.
Not taking anything away from Wixen Music Publishing, but this case is quite interesting because it could have wider ranging ramifications–if LyricFind did not have the rights to license Wixen repertoire to a client the size of Pandora but did so anyway, how many others are caught up in that mess? That’s a pickle of a whole different water, to mix a metaphor.
Status conference with Judge Wilson on September 9, stay tuned.