Lead Opinion
Plaintiff, Peter Deacon, filed suit against defendant, Pandora Media, Inc., in the United States District Court for the Northern District of California, claiming in relevant part that defendant had violated the preservation of personal privacy act (PPPA), MCL 445.1711 et seq.,
*480 Has Deacon stated a claim against Pandora for violation of the VRPA by adequately alleging that Pandora is [in] the business of “renting” or “lending” sound recordings, and that he is a “customer” of Pandora because he “rents” or “borrows” sound recordings from Pandora?
Furthermore, in certifying the question, the Ninth Circuit noted that
“the particular phrasing used in the certified question[s] is not to restrict the [Michigan] Supreme Court’s consideration of the problems involved and the issues as the [Michigan] Supreme Court perceives them to be in its analysis of the record certified in this case. This latitude extends to the [Michigan] Supreme Court’s restatement of the issue or issues and the manner in which the answers are to be given, whether as a comprehensive whole or in subordinate or even contingent parts.” [Deacon v Pandora Media, Inc., unpublished amended order of the United States Court of Appeals for the Ninth Circuit, entered February 24, 2015 (Case No. 12-17734), p 12, quoting Martinez v Rodriquez, 394 F2d 156, 159 n 6 (1968) (alterations in original).]
Having now heard oral argument and considered the issues involved, we grant the Ninth Circuit’s request to answer its question. However, we limit the question to whether plaintiff can be characterized under the PPPA as a “customer” of defendant because at the relevant time he was a person who “rent[ed]” or “borrow [ed]” sound recordings from defendant. We conclude that plaintiff was not such a “customer.”
I. FACTS AND HISTORY
Defendant is a Delaware corporation with its principal place of business in California. It operates a music-streaming program through the Internet called
In September 2011, plaintiff, a Michigan resident, sued defendant in the federal district court. He alleged that defendant (a) made its listeners’ profile pages, each of which included information about the listener’s music preferences, “publicly available and searchable on the World Wide Web for anyone to view” and (b) “unilaterally integrated its [listeners’] profile pages with their Facebook accounts.”
II. STANDARD OF REVIEW
“This Court reviews de novo issues of statutory interpretation.” In re COH,
III. ANALYSIS
“Our goal in interpreting a statute ‘is to give effect to the Legislature’s intent, focusing first on the statute’s plain language.’ ” Malpass v Dep’t of Treasury,
The title of the PPPA states that it is
[a]n act to preserve personal privacy with respect to the purchase, rental, or borrowing of certain materials; and to provide penalties and remedies for violation of this act.[7 ]
At all times relevant to this case, MCL 445.1712 of the PPPA prohibited the disclosure of certain materials:
Except as provided in [MCL 445.1713] or as otherwise provided by law, a person, or an employee or agent of the person, engaged in the business of selling at retail, renting, or lending books or other written materials, sound recordings, or video recordings shall not disclose to any person, other than the customer, a record or information concerning the purchase, lease, rental, or borrowing of those materials by a customer that indicates the identity of the customer.[8 ]
Furthermore, MCL 445.1711(a) of the PPPA defined “customer” as follows:
“Customer” means a person who purchases, rents, or borrows a book or other written material, or a sound recording, or a video recording.[9 ]
Regardless of any criminal prosecution for a violation of this act, a person who violates this act shall be liable in a civil action for damages to the customer identified in a record or other information that is disclosed in violation of this act. The customer may bring a civil action against the person and may recover both of the following:
(a) Actual damages, including damages for emotional distress, or $5,000.00, whichever is greater.
(b) Costs and reasonable attorney fees.
Under MCL 445.1715, only a “customer” may bring a civil action for a violation of the PPPA. For the reasons that follow, we conclude that plaintiff was not a “customer” as defined by MCL 445.1711(a) because he neither “rent[ed]” nor “borrow [ed]” a sound recording.
The PPPA does not define either “rent” or “borrow.” “When considering the meaning of a nonlegal word or phrase that is not defined in a statute, resort to a lay dictionary is appropriate.” Wesche v Mecosta Co Rd Comm,
Concerning “rent,” The Random House Dictionary of the English Language: Second Unabridged Edition (1987) defines the transitive form of the verb “rent” as “to take and hold (property, machinery, etc.) in return for the payment of rent. . . .” Because the dictionary definition of the verb “rent” incorporates the noun “rent,” we also determine the definition of the noun form of that word. The noun “rent” is defined as “a payment or series of payments made by a lessee to an owner in return for the use of machinery, equipment, etc.”
Concerning “borrows,” The Random House Dictionary of the English Language. Second Unabridged Edition (1987) defines the verb “borrow” as “to take or obtain with the promise to return the same or an equivalent!.]” Thus, the word “borrow” contemplates some promise to return the borrowed subject matter or its equivalent. As applied here, plaintiff was not a person who “borrowed]” a sound recording because there was no promise, implied or expressed, that he would ever “return” the sound recording or its equivalent to defendant. Put simply, the music-streaming program offered by defendant only involved the delivery of a sound recording to the listener; there was no corresponding “return” of a recording or its equivalent from the listener to defendant. American Broadcasting Cos, Inc v Aereo, Inc,
IV. CONCLUSION
At all relevant times, MCL 445.1711(a) provided that “ ‘[c]ustomer’ means a person who . . . rents, or
Notes
While other courts have referred to this statute as the “video rental privacy act” (VRPA), its provisions also cover books, written materials, and sound recordings. Accordingly, we will refer to it throughout this opinion as the “preservation of personal privacy act” (PPPA).
When the question was certified, MCR 7.305(B)(1) provided that “[w]hen a federal court, state appellate court, or tribal court considers a question that Michigan law may resolve and that is not controlled by Michigan Supreme Court precedent, the court may on its own initiative or that of an interested party certify the question to the Michigan Supreme Court.” Effective September 1, 2015, the court rule was
“A stream is an electronic transmission that renders the musical work audible as it is received by the client-computer’s temporary memory. .. . [TJhere is a playing of the song that is perceived simultaneously with the transmission.” United States v American Society of Composers, Authors & Publishers,
As described by defendant in the Form S-l Registration Statement it filed with the Securities and Exchange Commission, Pandora “uses intrinsic qualities of music to initially create stations and then adapts playlists in real-time based on the individual feedback of each listener.”
During the proceedings in the Ninth Circuit, the parties disputed whether the allegedly disclosed information concerning plaintiffs music preferences connected those preferences with his full name. We do not address that dispute.
Plaintiff did not appeal the dismissal of his MCPA claim, and that claim is not at issue here.
MCL 445.1713(a) to (e) set forth five exceptions to the general prohibition against disclosure under MCL 445.1712. None of these exceptions is relevant here.
Effective July 31, 2016, MCL 445.1711(a) will provide that “ ‘[c]us-tomer’ means an individual who purchases, rents, or borrows a book, other written material, a sound recording, or a video recording.” See
Plaintiff does not argue that he “purchase[d]” a sound recording for the purposes of MCL 445.1711(a).
By referring to this definition of the noun “rent,” we express no opinion on whether plaintiff may be characterized as the “lessee” or defendant may be characterized as the “owner” of sound recordings.
Plaintiff summarily asserts in a footnote that he was a person who “rentfed]” a sound recording because he “gave Pandora ‘rent’ in the form of advertising impressions and valuable personal and demographic information.” We conclude that this argument has been abandoned because plaintiff has provided no support for it. See Mitcham v Detroit,
Although we conclude that plaintiff was not a person who “rent[ed]” a sound recording because he did not provide a payment for it, we do not intend to suggest that the opposite conclusion would necessarily result if plaintiff had provided a payment. That is, we do not address the parties’ arguments concerning whether and to what extent, if any, it is only possible to “rent” a sound recording through “use” or “control.” Compare the statement in defendant’s supplemental brief on appeal that “the District Court correctly found the Complaint to be deficient because it is devoid of factual allegations sufficient to support a plausible claim that Plaintiff exercised, over the temporary Internet file, the type of use and control inherent in a ‘borrowing’ or ‘renting’ relationship” with the statement in plaintiffs supplemental brief on appeal that “the word ‘use’ never appears in the [PPPA] so the entire line of argument focused on ‘use’ is utterly misplaced.”
Although we recognize that the federal district court dismissed the PPPA claim under FR Civ P 12(b)(6) on the basis of its conclusion that plaintiff had “not alleged facts showing that Pandora rented, lent and/or sold music to him,” Deacon, 901F Supp 2d at 1176, and that he appealed the denial in the Ninth Circuit, we do not respond to the certified question to apply federal law concerning FR Civ P 12(b)(6) to his complaint. Rather, we only resolve an issue of Michigan law. In this regard, as stated previously, the Ninth Circuit, quoting Martinez, 394 F2d at 159 n 6, has asserted that “ ‘the particular phrasing used in the certified question^] is not to restrict the [Michigan] Supreme Court’s consideration of the problems involved and the issues as the [Michigan] Supreme Court perceives them to be . . . .” (Alterations in original.) In our judgment, the issue of Michigan law is best resolved without restricting it by the allegations in plaintiffs complaint. Thus, we will not answer the question presented here on the basis of an allegation unsupported by the record—that the sound recording is physically removed from the listener’s computer and returned to defendant, which allegation appears to be contrary to the basic definition of “streaming” found in computer dictionaries—simply because the question encompasses the phrase “stated a claim.”
As with our conclusion concerning the word “rents,” our conclusion concerning the word “borrows” leaves unresolved the issue of whether and to what extent, if any, it is only possible to “borrow” a sound recording through “use” or “control.” See note 13 of this opinion.
We recognize that in our digitized world it is possible to transmit audio or visual materials on a temporary basis absent any “return” of those materials. Our conclusion that plaintiff was not one who “borrow[ed]” a sound recording is directed by the language of the PPPA. To the extent that there are some who believe that the law should direct a different result, those arguments should be addressed to the Legislature. People v Dunbar,
Concurrence Opinion
(concurring). I join the majority opinion in full and write only to explain why, given my longstanding views on the questionable constitutionality of responding to certified questions from federal courts, I choose to participate in responding to the instant certified question.
The United States Court of Appeals for the Ninth Circuit has asked whether plaintiff has stated a claim upon which relief may be granted under the preservation of personal privacy act (PPPA), MCL 445.1711 et seq. The Michigan legal issue here—whether plaintiff is a “customer” under the PPPA who “rents” or “borrows” sound recordings—is determinative to the federal case.
This case called for the federal courts to interpret and apply a statute rarely seen in our state courts to new technologies not in existence at the time the statute was enacted. I believe that the question is sufficiently nuanced that this Court, as a prudential matter, properly responded by answering the question for the federal court.
See In re Certified Question from the United States Dist Court for the Western Dist of Mich,
Id. at 83-84.
See MCL 445.1711 and MCL 445.1712; Certified Question,
Compare Certified Question,
See id. at 85.
See id. at 85-86.