Recently, Apple forced Digital Music News (“DMN”), a website that covers news and information for the music industry, to pull an iTunes Radio contract from their website, citing copyright infringement as the reason for removal.
The contract, leaked by DMN in late June, was for independent, non-major record labels that didn’t have directly negotiated deals with Apple. DMN alleges that the contract forced “sub-standard terms” on all but the most distinguished independent record labels. That is, the deals with independent record labels were starkly different than those with major record labels. Notably, this allegation is based on information obtained from an unnamed source, as copies of Apple’s contract with major labels have not been leaked. DMN, along with others who think Apple went too far, claim that the forcible removal was Apple’s way of suppressing information, not honoring copyright laws.
While it is rare to copyright a contract, it is within the bounds of the law. Specifically, as is the situation here, Apple owns the words of the contract, not the information. Thus, it’s likely that had DMN summarized the contract in its own words, Apple wouldn’t have taken action.
The Apple–DMN dispute highlights a counterintuitive principle of copyright law: contracts can be copyrighted. Standard-form contracts, licensing agreements, and other commercial contracts drafted by attorneys often contain substantial original expression — negotiated language, defined terms, and structured provisions that reflect original authorship. That original expression is protectable under 17 U.S.C. § 102(a).
The critical distinction, as the Apple case illustrates, is between the expression in a contract and the ideas or facts the contract contains. Under the idea-expression dichotomy in 17 U.S.C. § 102(b), copyright protects only the specific wording of a contract, not the underlying business terms. Apple could assert copyright over the specific language of the iTunes Radio agreement — the words as written. It could not prevent DMN or anyone else from summarizing, reporting on, or discussing the business terms the contract contained.
The Supreme Court articulated the idea-expression dichotomy in Baker v. Selden, 101 U.S. 99 (1879), holding that copyright in a book explaining a bookkeeping system did not give the author exclusive rights to use the system itself. The principle extends directly to contracts: copyright in the text of a contract does not give the author exclusive rights to the business deal the contract embodies.
This distinction has significant practical implications for journalism, legal commentary, and competitive intelligence. A journalist who receives a leaked contract can report on its business terms without reproducing the contract verbatim. A lawyer advising a client on a competitor’s standard-form agreement can analyze and discuss the terms without reproducing the document. A regulatory filing that incorporates contract terms as facts does not infringe the underlying contract’s copyright.
Publishing the contract verbatim, however, is a different matter. DMN published the actual iTunes Radio agreement. If the agreement contained sufficient original expression — which most commercial contracts do — then verbatim publication likely did infringe Apple’s copyright in the document. Apple’s DMCA takedown notice was legally defensible, even if the underlying motive was to suppress unfavorable information about its licensing terms with independent labels.
The Apple case is a useful reminder for businesses that create standard-form contracts, terms of service, and proprietary agreements:
The Digital Millennium Copyright Act, 17 U.S.C. § 512, provides a mechanism for copyright owners to demand removal of infringing content from online platforms. A DMCA takedown notice sent to the platform hosting the infringing content requires the platform to expeditiously remove the content to maintain its safe harbor protection. If the uploader files a counter-notice, the platform may restore the content after 10 to 14 days unless the copyright owner files a lawsuit.
Apple’s use of a DMCA takedown notice against DMN was legally sound: Apple owned the copyright in the iTunes Radio contract, DMN published it verbatim, and the DMCA provides an expeditious enforcement mechanism. Whether Apple’s copyright claim was its real motivation — or whether it was using copyright as a tool to suppress unfavorable information — is a separate question. Copyright law does not require that a copyright holder’s motive for enforcement be pure; it requires only that the claimed infringement actually occurred.
If you have questions about copyright law or copyright infringement, contact the copyright attorneys at Revision Legal at 855-473-8474 or complete our contact form.
The Apple–DMN dispute has practical implications for how businesses manage their confidential documents. Relying solely on copyright to protect the confidentiality of contracts and proprietary documents is insufficient — copyright protects the expression, not the information, and does not bind parties who obtained the document through channels not covered by NDA or confidentiality agreement.
A comprehensive approach combines: (1) copyright registration for important form contracts and proprietary documents; (2) robust non-disclosure agreements covering all parties who receive access; (3) DMCA enforcement for rapid takedown of improperly published documents; and (4) trade secret protection where the document contains competitively sensitive information that derives independent economic value from secrecy.
Contact Revision Legal’s internet attorneys if you need assistance drafting confidentiality agreements, asserting copyright over improperly published business documents, or responding to DMCA takedown notices involving business-related content.
Contact the copyright attorneys at Revision Legal with questions about copyright law or infringement. Call 855-473-8474 or complete our contact form.
Hitpiece.com scraped artists’ music and created NFTs without permission. Here’s how the copyright infringement dispute unfolded and what it means for NFT platforms.
Read more about Hitpiece.com and Copyright Infringement
Cybersquatting involves registering domain names in bad faith to profit from others’ trademarks. Here’s an overview of the ACPA and how it protects trademark owners.
Read more about An Overview of Cybersquatting Laws
Copyright infringement fraud involves filing false DMCA notices or misrepresenting ownership to profit illegally. Here’s how these schemes work and how to fight back.
Read more about Copyright Infringement Fraud: A Serious Problem