High court: Pandora didn’t violate Mich. man’s privacy

Mark Hicks
The Detroit News

A Michigan man cannot claim the Pandora music-streaming service violated his privacy by publicly sharing his preferences because he isn’t legally considered a customer, the state Supreme Court ruled Wednesday.

Peter Deacon created an account in 2008 through the online program that allows listeners to create a customized “radio station” based on their favorite artists, songs or musical genre, according to a case summary.

But he alleged Pandora violated the state’s Video Rental Privacy Act “by disclosing his name, listening history, bookmarked artists and bookmarked songs so they were searchable on the Internet and viewable by his Facebook friends,” the summary said.

Deacon also claimed Pandora violated the Michigan Consumer Protection Act and sought damages for himself and other state residents as well as an order requiring the service to stop divulging the details.

In 2011, he filed a class-action complaint in California, where Pandora’s headquarters are located. The federal district court dismissed Deacon’s claim, but he appealed to the 9th Circuit Court of Appeals, which then asked the Michigan Supreme Court to determine: had Pandora been “renting” or “lending” sound recordings, and was Deacon a “customer” because he “rents” or “borrows” the material?

In the opinion issued Wednesday, judges noted that Pandora listeners can opt to pay to use a version without commercials but “there is nothing to suggest” that Deacon did. Furthermore, state law defines “customer” as “a person who ... rents, or borrows ... a sound recording,” they wrote.

“We hold that plaintiff was not a person who ‘rent[ed]’ a sound recording because he did not give payment for it,” the opinion read. “We further hold that plaintiff was not a person who ‘borrow[ed]’ a sound recording because there was no promise, implied or expressed, that he would ‘return’ the sound recording or its equivalent to defendant. We therefore conclude that plaintiff was not a ‘customer.’ ”

The attorneys listed in court documents as representing Deacon did not immediately respond to requests for comment. Deacon could not be reached.

Jill Wheaton, the lawyer who represented Pandora Media in the case, welcomed the ruling.

“We’re very happy with it. We think the court got it right,” she said, adding the defendants “tried to apply an old statute to new technology.”