Is a Playlist Copyrightable? (September 17, 2004)

From Wired.com: "Generic mouthwashes claim to be just as good as Listerine, and store-brand paper towels invite consumers to compare them to Bounty. This kind of marketing doesn't raise many eyebrows. But what if an online radio station says it's just 'like' New York City's Z100 or L.A.'s KROQ, and manages to sound pretty much the same?

"Good question. Soon, the world's largest software company, a staunch defender of its own copyrights, may have to answer it in court.

"Earlier this month, Microsoft began charging users to listen to online clones of 978 U.S. and Canadian radio stations with 'fewer ads, no DJ chatter and less repetition.' And no, Bill Gates didn't ask the stations for permission to copy their playlists...

"Is all this legal? Microsoft, after all, isn't just using station call letters. It promotes its clones by using station nicknames (i.e., Star 100.7 or K-Earth 101) and, in some cases, their slogans ('today's best rock hits,' 'lite rock, less talk'). If you go to the Radio Plus website and click on Salt Lake City, for example, a list of 11 choices will pop up, including 'Like 92.1 FM/KUUU U92 Blazin Hip-Hop Beat' and 'Like 100.3 FM KSFI FM 100 Continuous Soft Hits.'

"In a statement, Microsoft defends itself: 'The use of station names is applied only to indicate the top artists on a station, and we believe it's simply a factual statement about the radio station, similar to many other public radio charts on the web.'

"The word 'factual' is key. Under the law, general 'facts' -- how many people live in Chicago, for instance, or the number of ounces in a pound -- don't belong to anyone. In 1991, the Supreme Court ruled that even the listings in the white pages aren't protected by copyright law...

"Under the court's interpretation, the radio station playlists may essentially belong to no one...

"Elsewhere on the copyright front, there's the matter of all those radio-station nicknames and slogans...

"Tommy Hadges, president of Los Angeles-based Pollack Media Group (said,) 'If I'm saying I'm Kiss FM and there's a Kiss FM that's trying to rip you off, perhaps there's a basis for a lawsuit there.'..

"In theory, the idea of disc-jockey-free stations may sound great, and radio stations often hear from listeners who say they hate contests and chatter. But the ratings often tell a different story, with music-heavy stations often pulling up the rear. Then there's the matter of the song mix on the clone stations, which don't benefit from human massaging...

"It may be hard to imagine, but the clones also seem to repeat individual songs more than highly repetitive Top 40 stations that may play the same song 85 times a week... (Under federal law, Internet radio stations may not play songs by the same artist more than four times in three hours. It was not immediately clear if Microsoft's licensing of songs allows it to skirt the rules.)

"Regardless of repetition issues, does Radio Plus sound good?

"'In terms of providing much of a listening experience beyond any other Internet radio station, it doesn't feel like much has changed,' (Sean Ross, a radio analyst with Edison Media Research) said in an interview. 'It still feels like a bunch of records playing on your CD changer with minimal enhancement.' Radio Plus simply lacks the spirit of radio stations, said Don Shafer, general manager of rock station CHSU/Sun FM in Kelowna, British Columbia, which has been cloned by Microsoft. 'The heart of it is what's missing,' he said. 'So what are they doing it for?'"

Read the whole articles here

Kurt Hanson Sep 17
Wired Article