In re Certified Question from the U.S. Court of Appeals for the 9th Circuit

• Citation: 499 Mich. 477,885 N.W.2d 628
• Decision Date: 06 July 2016
• Docket Number: Docket No. 151104.
• Parties: In re CERTIFIED QUESTION FROM the UNITED STATES COURT OF APPEALS FOR the NINTH CIRCUIT (DEACON V. PANDORA MEDIA, INC).
• Court: Michigan Supreme Court

499 Mich. 477

885 N.W.2d 628

In re CERTIFIED QUESTION FROM the UNITED STATES COURT OF APPEALS FOR the NINTH CIRCUIT (DEACON V. PANDORA MEDIA, INC).

Docket No. 151104.

Supreme Court of Michigan.

Argued April 27, 2016.

Decided July 6, 2016.

Edelson PC (by Jay Edelson and Ryan D. Andrews ) for Peter Deacon.

Dykema Gossett, Ann Arbor (by Jill M. Wheaton and Krista L. Lenart ) for Pandora Media, Inc.

MARKMAN

, J.

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, MCL 445.1711 et seq.

,¹ by publically disclosing personal information concerning his music preferences. The federal district court ruled in favor of defendant, and under MCR 7.305(B),² the United States Court of Appeals for the Ninth Circuit certified the following question to this Court:

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 [Deacon v. Pandora Media, Inc., unpublished amended order of the United States Court of Appeals for the Ninth Circuit, entered February 24, 2015 (Case No. 12–17734), p. 12, quoting Martinez v. Rodriquez,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 F.2d 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 “Pandora”³ that allows each listener to create a unique, customized “radio station” based on, for instance, a preferred artist or musical genre. Thereafter, the music streamed by Pandora becomes increasingly refined to more closely match the listener's music preferences as the listener indicates to Pandora whether he or she likes or dislikes particular songs being played.⁴

The listener may skip or bypass a song, but may not save, fast forward, or rewind a song. In addition, the listener cannot select the particular song to be played, but must restrict himself or herself to the song selected by Pandora. Pandora is free, although listeners may elect to pay a fee to use a version of Pandora that does not have commercials.

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.”⁵ According to plaintiff, that integration resulted in the public release of “sensitive listening records to all of [a listener's] Facebook ‘friends.’ ” As a consequence of these two disclosures, plaintiff claimed, defendant had violated both the PPPA and the Michigan Consumer Protection Act (MCPA), MCL 445.901 et seq.

Plaintiff sought monetary and equitable relief for himself and on behalf of a putative class of all Michigan residents who were registered listeners of Pandora before August 5, 2010, and who allegedly had suffered similar public disclosures of personal information. The federal district court granted defendant's motion to dismiss both claims. Deacon v. Pandora Media, Inc., 901 F.Supp.2d 1166 (N.D.Cal., 2012). Plaintiff appealed the dismissal of his PPPA claim in the Ninth Circuit, and that court certified the present question to this Court.⁶ We ordered oral argument on whether to grant the request to answer this question, In re Certified Question from the United States Court of Appeals for the Ninth Circuit, 498 Mich. 882, 869 N.W.2d 277 (2015), and argument was heard on April 27, 2016.

II. STANDARD OF REVIEW

“This Court reviews de novo issues of statutory interpretation.” In re COH, 495 Mich. 184, 191, 848 N.W.2d 107 (2014)

.

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, 494 Mich. 237, 247–248, 833 N.W.2d 272 (2013)

, quoting Klooster v. City of Charlevoix, 488 Mich. 289, 296, 795 N.W.2d 578 (2011). “[W]ords used by the Legislature must be construed and understood in accordance with their common, ordinary meaning.” Smitter v. Thornapple Twp., 494 Mich. 121, 129, 833 N.W.2d 875 (2013). “When the language of a statute is clear, it is presumed that the Legislature intended the meaning expressed therein.” Epps v. 4 Quarters Restoration LLC, 498 Mich. 518, 529, 872 N.W.2d 412 (2015)

.

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 ]}

Finally, MCL 445.1715

of the PPPA provided a civil remedy for its violation:

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.¹⁰ Accordingly, we need not address whether plaintiff established the remaining elements of a PPPA claim, such as, for example, whether the PPPA applied to defendant because it was “engaged in the business of ... renting, or lending ... sound recordings” under MCL 445.1712.

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., 480 Mich. 75, 84, 746 N.W.2d 847 (2008)

. In this regard, it is best to consult a dictionary from the era in which the legislation was enacted. See Cain v. Waste Mgt., Inc. (After Remand), 472 Mich. 236, 247, 697 N.W.2d 130 (2005) (“Because the statute itself does not define ‘loss,’ ... we must ascertain the original meaning the word ‘loss' had when the statute was enacted in 1912.”). Because the PPPA was enacted in 1988, we consult dictionaries from that era to define those words. Furthermore, because those words are used as verbs in the statute, we identify the definitions of those words as verbs.

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.”¹¹ Id. Thus, for a listener to constitute a person who “rents” a sound recording, he or she must, at a minimum, provide a payment in exchange for that recording. Stated otherwise, the word “rent” contemplates some form of payment. Here, however, there is nothing to suggest that plaintiff was one of those listeners who paid the optional fee to receive sound recordings using the commercial-free version of Pandora. Further, there is nothing to suggest that plaintiff otherwise provided any payment to defendant in exchange for a sound recording. Thus, because plaintiff did not provide a payment for a sound recording,¹² we conclude that he was not “a person who ... rents ... a sound recording....”¹³ MCL 445.1711(a)

.

Concerning “borrows,” The Random House Dictionary of the English Language: Second Unabridged Edition ...