Google Backs Government’s Call for SCOTUS to Deny Genius’s Cert Petition
Google agrees with the May 23 invitation brief of the U.S. solicitor general that the Supreme Court should deny ML Genius’s cert petition for “multiple reasons” (see 2305240008), said Google’s supplemental brief Tuesday (docket 22-121). Genius’s petition was distributed for the justices’ June 22 conference, said a docket entry Tuesday. The case involves Genius, an online platform for transcribing and annotating song lyrics, and its requirement that visitors agree to its contractual terms as a condition for using its services. Those terms include the promise not to reproduce the contents of Genius’ platform.
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Genius alleges Google contractually bound itself to those terms, but in blatant breach of that contract, Google stole Genius’s “labors” for its own competing commercial purposes. It also alleges Google copied lyrics from Genius’ website and used them in Google’s information boxes. It says Google’s unlawful actions substantially reduced the number of visits to Genius’ website, significantly decreasing its advertising revenue.
Google agrees with the solicitor general’s findings that further SCOTUS review of Genius’s claims isn’t “warranted” because the case would be a “poor vehicle” for clarifying how Section 301(a) of the Copyright Act would apply to breach-of-contract claims, said Google’s brief. Google agrees with the government that Genius presents an “atypical” contract claim, though Genius’s June 2 supplemental brief took issue with that “characterization” for the first time, it said.
Genius, in its supplemental filing, “protests that its claim stems from a conventional implied-in-fact contract,” said Google’s brief. Genius now asserts its breach claim turns on Google’s actual knowledge of Genius’s terms of service prohibiting that conduct, it said. Genius said it never asserted it can enforce its terms of service against any person who visits its website, whether or not the visitor is aware of its terms of service, it said.
But that’s “precisely what Genius pleaded,” said Google’s brief. In its complaint, Genius alleged all users who visit Genius’s website are bound by its terms of service, regardless of whether a user registers for an account, it said. Genius’s terms of service similarly assert that users -- Google in particular -- automatically are bound by its terms simply by accessing or using the website, it said.
Genius’s theory in its complaint wasn’t that Google knowingly manifested any intent to be bound by Genius’s terms of service, said Google’s brief. Instead, as the solicitor general observes, Genius’s theory was that any person who visits its website automatically becomes a contractual counterparty who's deemed to have agreed to Genius’s terms of service, it said. Genius’s contract claims therefore are substantially different from more typical contracts that involve express manifestations of consent from both parties, it said. Google agrees with the government the case is an "unsuitable vehicle” for addressing Section 301(a)’s application to contract claims, it said.
Genius’s “vehicle problems” aren’t resolved by its contention its “browsewrap terms of service” are simply an implied-in-fact contract, said Google’s brief. Genius “never pleaded the existence” of any implied-in-fact contract, it said. Genius instead alleged its terms of service “constituted a written agreement, which is inconsistent with any (belated) claim of an implied contract,” it said.
Regardless of how Genius’s claim is “characterized,” it’s unclear whether Genius can prove Google “ever assented to its terms of service, given that those terms are inconspicuously tucked behind a tiny link at the bottom of its webpage,” said Google’s brief. As the solicitor general observed, a case involving a contract that’s “clearly valid” would be a much better vehicle for deciding Section 301(a)’s application to contract claims, it said.