The Michigan Supreme Court recently decided a case involving the Pandora music streaming service in a case with implications for the scope of personal privacy under the Michigan Preservation of Personal Privacy Act, MCL 445.1711. At issue was whether Pandora Media Inc had violated a user of its music streaming services rights to personal privacy under the Michigan Preservation of Personal Privacy Act by publicly disclosing personal information concerning his music preferences.
The Federal Appeals court for the Ninth Circuit certified a question to the Michigan Supreme Court asking whether the user stated claim against Pandora under Michigan law. The Michigan Supreme Court noted that the Michigan Preservation of Personal Privacy Act was enacted into law in an earlier age of VCR video rental services and library borrowing – a different context in terms of technology than now exists in 2016. The Michigan Supreme Court held that a user of Pandora’s music streaming service who makes no payment to Pandora was not a “customer” protected by the PPPA because he did not “rent” or ”borrow” music recordings from Pandora. The Supreme Court reasoned that the user made no payment and therefore was not a “customer”; and further that there was no implied or express “promise to return the recording” to Pandora after it was listened to, and thus the Pandora user did not “borrow” it. The Supreme Court appeared to acknowledge that its narrow ruling did not extend a large scope of protection to the Pandora user and that might possibly be inconsistent with the Legislative intent to protect and preserve personal privacy, but the Court observed that the Legislature should fix or revise the Michigan Preservation of Personal Privacy Act if there is a problem with the statute, not the courts. In the digital age, the statute probably provides less protection than in the VCR age, because users of internet “streaming” services do not typically “return” the music they listen to through internet services. The Michigan Supreme Court’s decision is in the case of In Re Certified Question from the United States Court of Appeals for the Ninth Circuit, arising out of Peter Deacon v Pandora media Inc, (MI Supreme Court Case No.: 151104) decided July 6, 2016.
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