In re Certified Question: Deacon v. Pandora Media
Docket No. 151104
Trial Lawyers’ Bottom Line: Under the PPPA, a person must pay money to “rent” media and must be forced to return media to “borrow” it.
Peter Deacon used the free music streaming service Pandora. He sued Pandora because it posted what songs he was listening to on his facebook account. He claimed this was a violation of the Preservation of Personal Privacy Act (MCL 445.1712) and brought a class action. The Ninth Circuit certified the question of whether he was protected by the PPPA to the Michigan Supreme Court.
The Act prohibits businesses engaged in selling at retail, renting, or lending books, sounds recordings, or video recordings from disclosing a person’s rental history to anyone other than the customer. From what I’ve gathered, these laws were actually passed in response to the release of Judge Bork’s movie rental list during his Supreme Court confirmation hearings.
The Act goes on to define a “customer” as someone who purchases, rents, or borrows media. And it even allows for the recovery of damages for emotional distress. In a unanimous opinion written by Justice Markman, the Court said that Deacon was not a “customer” because he didn’t “rent” or “borrow” the songs.
The Court held that for a listener to “rent” a recording, he or she must, at a minimum, provide payment in exchange for it. Second, Deacon did not “borrow” the song because he did not have to return it. The program delivers the song, but Deacon didn’t have to do anything to return it.
The Court noted that the Legislature recently amended the PPPA, but the Court’s decision is not affected by the amendment.