Strange days are upon the digital music scene as Listen.com prepares to join the recording industry, Metallica, and Dr. Dre in going after Napster for copyright infringement -– but not for pirating music.
Napster's "New Artist Program", which is used by unsigned artists to make their music available online, was recently redesigned to include a genre tree of music categories. Listen.com thinks that the pages look too similar to information on its website.
In an effort to improve its business relations, Napster has hired a music industry insider.
Tuesday evening, Listen.com president Sean Ryan called Napster's chief operating officer Milt Olin and asked him to remove the genre tree. It wasn't removed, so Ryan is preparing to send a cease-and-desist letter to request that Napster take down the page.
"We have licensed this genre (tree) to two other companies and we are actively licensing this intellectual property, so this could hurt us from a business perspective," said Ryan. "While we make most of our money licensing the whole directory, we do license the hierarchy out to companies that don't want to create this from scratch."
While Napster hasn't taken down the hierarchy tree, the company is looking into the matter, a source inside the company said.
Ryan said they took action because the project required 20 people working for nearly 3 months to develop the 600 genres and subgenres of music classification. Along with each genre is a short, written description of the music and a popular musician or group that is usually identified with the selection.
"Copyright protection goes to the entire work as a whole, not one generic term in the directory such as 'rock,' but it protects the unique classification structure that we created," Carol Smith, general counsel for Listen.com, wrote in an email. "All directories vigorously protect their (structure). Plus we've coined new terms in our subclassification area which Napster also took, and that's protected both by copyright and trademark law."
Listen.com execs might be upset about having their categories cloned, but according to a copyright lawyer there might not be much they can do about it.
"Copyright does not protect 'terms' or ideas, only expressions of ideas," copyright lawyer Whitney Broussard of Selverne, Mandelbaum & Mintz, wrote in an email. "A classification system is more like an idea than an expression. A database is the expression of that idea of the classification system."
"Trademark protects words only when they are used to denote the origin of the goods or services," said Broussard. "Since the genre classifications they claim to have originated are not used to designate that the origin of those goods is Listen.com, then they cannot claim trademark rights."
In an attempt to help the company improve its tenuous business relations, Napster on Wednesday landed a music industry insider. The company hired Keith Bernstein, a former director of operations at Universal Music Group's Global e, as vice president of operations. Bernstein worked with compensation issues for works sold online at Universal.
Listen.com is funded in part by BMG Entertainment, EMI Recorded Music, the Universal Music Group, Warner Music Group, and Sony Music Entertainment, which are currently involved in litigation over Napster's alleged copyright violations.
