I find the story of Ministry of Sound taking legal action against Spotify absolutely fascinating, and potentially troubling, as it potentially opens up many cans of worms.
As I understand it, it goes something like this. Ministry of Sound has a very profitable business releasing compilation albums. They licence tracks from various labels which they compile into a compilation album – usually following some kind of theme. Often, these tracks are also mixed using beat and key matching to produce a continuous piece of music.
Spotify represents a threat to this business because users can make and share playlists on the service. In particular, Ministry of Sound is upset that users have been replicating their compilation albums (which as I understand it, are not available on Spotify) by building playlists that contain the Ministry of Sound compilations’ tracks in the same order. It would seem likely that users are naming these playlists after their respective Ministry of Sound albums.
Ministry of Sound is arguing that it has copyright on the track selection and order, and that therefore users/Spotify are in breach of its copyright.
To be clear – the tracks are legitimately available on Spotify. It’s the order that they’re being collated or curated in that’s being questioned.
Ministry of Sound claims that it takes a lot of work curating their compilations as well as the skill of their producers in determining the order.
So is this copyrightable?
Media Guardian draws an analogy with football fixtures, which are deemed to be copyright. If I wanted to put Arsenal’s fixture list on this website, I legally need to pay a fee to do so. I don’t believe that’s the case in retrospect. I can report on all the fixtures that have taken place this season to date. But I wonder how useful an analogy this is? Only a very select number of bodies determine the fixture list (The Premier League, the Football League, the FA, Police etc.), whereas anyone can sequence some pre-existing songs.
And this could conceivably extend to radio. Is the order that your station plays songs copyrightable? Because if Ministry of Sound wins its case, then that would seem to be the corollary. Indeed I know that not all stations were completely happy when One Golden Square launched its Compare My Radio website. In that instance, the site replicates what other commercial products do, which is to report what songs have been played after they have aired.
But think about this. Station X plays sequences of three songs between ad breaks. They’re a hit music station, so they have a relatively small playlist. So in one break, they play songs A, B and C in that order. Station Y, owned by a rival group, in another part of the country, is also a hit music station. It too plays those same three songs in the same order. Does Station X own the copyright? Can it sue station Y? Is three songs too little? Maybe it should be four? Even then it’d still be possible to run into cases where one station replicates another’s playlist order.
And let’s return to Spotify for a moment. What if Ministry of Sound inadvertently copied a Spotify user’s playlist? I mean there are a lot of users of Spotify, and it’s entirely conceivable that a fan of “Dubstep Classics” has already created a playlist with some of the same tracks in order.
Indeed, a really malicious user might seek to circumvent Ministry of Sound by selecting a series of likely tracks that could appear on a future album, and then creating every possible combination of those tracks. While 10! (ten factorial) for ten tracks is a large number – 3,628,000 – computers do let us get through these things quite quickly. Would the copyright of every combination of those tracks be owned by our smart user, thus preventing a record company playing those tracks in any of those orders? If so, then this would prevent anyone else using those particular tracks in any order at all!
I would argue that while the skill of the mixer (or the engineer who’s using the software that actually does the mixing in many cases) is perhaps copyrightable, the order of the songs in an unmixed Spotify playlist is neither here nor there. And perhaps a user should be prevented from using copyrightable album titles for their playlsits. But if a sequence of songs is copyrightable, then how long does that sequence need to be? Is just playing Blurred Lines followed by We Can’t Stop It copyrightable?
I’d argue that the case needs to be thrown out. But then I’m not a copyright lawyer…