885 N.W.2d 628
Mich.2016Background
- Plaintiff Peter Deacon, a Michigan resident, sued Pandora alleging violations of the Preservation of Personal Privacy Act (PPPA), MCL 445.1711 et seq., for publicly disclosing his music-listening profile and integrating it with Facebook.
- Pandora operates an internet music‑streaming service (Pandora) that streams songs in a customized, algorithmic “radio” format; listeners cannot save, fast‑forward, or rewind and may skip songs; service is free with an optional paid commercial‑free tier.
- Deacon sought class relief and alleged PPPA and MCPA claims; the federal district court dismissed both claims; Deacon appealed and the Ninth Circuit certified a question to the Michigan Supreme Court about whether Deacon was a PPPA “customer” because he “rented” or “borrowed” sound recordings from Pandora.
- The Michigan Supreme Court limited the certified question to whether Deacon was a “customer” under MCL 445.1711(a) by virtue of “renting” or “borrowing” sound recordings and declined to address other PPPA elements.
- The court applied ordinary‑meaning statutory interpretation, consulting contemporaneous dictionaries (1987) to define “rent” and “borrow.”
- Holding: Deacon was not a “customer” because he neither paid (no rent) nor promised to return the recordings (no borrow); thus he lacks PPPA standing to bring a civil action under the statute as then written.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Deacon was a PPPA “customer” because he “rented” sound recordings from Pandora | Deacon contended his use of Pandora constituted renting (and possibly borrowing) of sound recordings; asserted Pandora received value (ads/data) in exchange | Pandora argued streaming is not renting or lending: listeners did not pay (most used free tier) and had no ownership/use rights like a lessee | Not a customer — “rent” implies payment; Deacon did not pay for the recordings |
| Whether Deacon “borrowed” sound recordings under PPPA | Deacon argued streaming access amounted to borrowing | Pandora argued streaming lacks any promise or obligation to return the recording or equivalent; streaming is one‑way transmission | Not a customer — “borrow” implies a promise to return; streaming lacks return obligation |
Key Cases Cited
- In re COH, 495 Mich 184 (statutory interpretation reviewed de novo)
- Malpass v Dep’t of Treasury, 494 Mich 237 (give effect to legislature’s intent; focus on plain language)
- Klooster v City of Charlevoix, 488 Mich 289 (statutory interpretation principles)
- Smitter v Thornapple Twp, 494 Mich 121 (words construed by common, ordinary meaning)
- Epps v 4 Quarters Restoration LLC, 498 Mich 518 (clear statutory language presumed to reflect legislative intent)
- Wesche v Mecosta Co Rd Comm, 480 Mich 75 (use of dictionaries for undefined nonlegal words)
- Cain v Waste Mgmt, 472 Mich 236 (consult contemporary dictionaries to ascertain original meaning)
- United States v American Society of Composers, Authors & Publishers, 627 F.3d 64 (2d Cir.) (definition and discussion of streaming)