As you know, Apple’s iTunes software includes a “lyrics” field for every digital song file, permitting users to add lyrics to song files purchased from the iTunes Music Store or copied from CD. Lyrics can then be displayed when the song files are played on certain iPods. It is our view that this activity—annotation by individual music fans of legitimately acquired music—would be viewed as a “fair use” under U.S. copyright law. At a minimum, we know of no legal authority suggesting that such personal, noncommercial copying of lyrics constitutes infringement.

According to MacWorld magazine’s January 2006 issue, as well as the pearLyrics website, the pearLyrics software simply assists users of iTunes to populate this lyrics field, relying on lyrics data maintained by third parties (either locally stored or on websites). Insofar as the activities of individual music fans who annotate their music files with lyrics is noninfringing, there can be no secondary liability on behalf of a developer of similar software under U.S. law. Even assuming that some uses of pearLyrics might infringe the rights of your clients, it is clear in U.S. law that secondary liability will not lie against the software developer so long as the software is “capable of substantial noninfringing uses.” Sony v. Universal City Studios, 464 U.S. 417, 442 (1984). To the extent that personal, noncommercial annotation of legitimately acquired digital music files constitutes a noninfringing fair use, then it appears clear that the principal, intended use of pearLyrics (or similar software) is noninfringing under U.S. law, thus easily satisfying the standard set forth in Sony v. Universal City Studios.

Nor does the recent U.S. Supreme Court decision in MGM v. Grokster, 125 S.Ct. 2764 (2005), support your position. That decision recognized that secondary liability may lie where a software distributor induces or encourages infringing uses of its product. Insofar as personal, noncommercial annotation of legitimately acquired digital music files constitutes a noninfringing fair use, there is nothing unlawful about inducing or encouraging music fans to engage in that activity.

In light of the foregoing discussion, we warn Warner/Chappell against making any legal threats similar to those leveled against Mr. Ritter against any U.S. software developers who may develop products similar to pearLyrics. Such threats could expose Warner/Chappell to a declaratory judgment action from either the software developers or the music fans who use the software in question. See Newmark v. Turner, 226 F.Supp.2d 1215 (C.D. Cal. 2002).

Furthermore, in your letter to Mr. Ritter, you threatened to communicate your infringement allegations to his internet service provider (“ISP”). Any similar action in the United States against developers of software similar to pearLyrics may expose Warner/Chappell to liability under 17 U.S.C. § 512(f), insofar as it constitutes a knowing misrepresentation as applied to noninfringing activity.

Sincerely,

Fred von Lohmann
Senior Intellectual Property Attorney