The ‘Copyright Is Hard’ Defense is the Biggest Joke Surrounding the Pandora Lawsuits

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Music streaming services dominate the listening landscape because they deliver content using mind-reading algorithms that constantly destroy the illusion of individuality and reveal that customers are exactly as basic as we are. all know.

They are also massively wealthy because they have huge libraries. But they have to pay for these libraries: buy a license from the record company to have the right to play the audio recording and a license from the songwriter to have the right to play the song. It turns out no one ever thought of mirroring this arrangement for comedy albums, despite them being a staple of the recording industry for decades. Comedians get Grammys… but no one ever wondered if they should get paid to write content for their albums.

Some comics dispute this.

Spotify has already pulled a bunch of humorous content about IP issues. Pandora dubbed its streaming comedy and is now facing legal action over it. Because for years the services paid record labels for comedian recordings and just…didn’t pay for comics.

You should go see Isaiah Poritz dive into the ins and outs of spoken word copyright for the full picture, but the professor Kristelia Garcia of Colorado Law summarized the gist of Pandora’s only possible defense for Bloomberg:

The company would have to research the owners of each comedy routine and negotiate an individual license, which can be difficult and expensive, García said. But that doesn’t mean Pandora is clear of infringement, she said.

“I don’t think it’s legally disguised to say, ‘We didn’t pay these people because it was hard to do it,'” said García, who predicted Pandora would settle out of court. “I think it’s a pretty open and closed deal, and I don’t see ‘difficulty’ as a rational defense.”

No, that’s probably not a rational defense and that’s why it’s quite possible that Pandora will try to sort this out before you have to say that defense out loud.

Pandora apparently spent years noting in its filings with the SEC that comedians realizing they should get paid for it all was a risk factor. Something plaintiffs claim amounts to an admission of knowing violation and, by extension, triggers a higher sentence.

There’s a time in law school where intellectual property law feels like a noble effort to protect artists. Then you grow up and realize it’s largely written to allow big corporations to poach talented people and shut everyone else out of the market.

This may be a bit too cynical, but the copyright regime is in desperate need of reform and nobody seems to want to take the first step. Well, Republicans think about it now that they’re mad at Disney for expressing the minimum of conscience. So… yay for “legislating out of spite”. I guess?

In the meantime, this might be one of those times when the honorable intentions of existing law might actually help artists get a bit of their due.

Comedians feud with streaming giants asks: who can use my joke? [Bloomberg Law]


Head shotJoe Patrice is an editor at Above the Law and co-host of Think like a lawyer. Feel free to email tips, questions or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as Managing Director at RPN Executive Search.

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