TikTok has recently been in the news for two reasons.
The first is for censorship. The Washington Post notes they appear to be censoring clips from users that are critical of the Chinese Government or videos in support of Hong Kong protestors. The Guardian in the UK reports:
TikTok, the popular Chinese-owned social network, instructs its moderators to censor videos that mention Tiananmen Square, Tibetan independence, or the banned religious group Falun Gong, according to leaked documents detailing the site’s moderation guidelines.
TikTok which has headquarters in Los Angeles may at first seem to be simply joining the ranks of the Nike and NBA as (faux progressive) corporate entities that kowtow to authoritarian governments. But what most people don’t’ realize is that TikTok is a subsidiary of a 78 billion dollar Chinese “start-up” that is heavily staffed with Chinese Communist Party members and directly under control of a government ministry. It is not unreasonable to characterize this company as an influence tool of the authoritarian Chinese state. Especially if you consider TikTok is not available in China only outside mainland China. As BuzzFeed notes:
“Eschewing typical forms of Chinese soft power, TikTok could be the arrival of a subtler form of algorithmic influence, with sophisticated Chinese AI controlling what becomes viral content potentially shared among millions of young Americans”
(Editor note: Try this at home. Look for any recordings from 1990s or 2000s concerts supporting Tibetan freedom on Spotify. I couldn’t find any. It should be noted Chinese social credit rating app maker Tencent owns a 10%+ stake in Spotify).
COPYRIGHT INFRINGEMENT BY TIKTOK
The Second reason is copyright infringement. As Billboard reports the National Music Publishers Association has asked the Senate to look into copyright infringement by the social media giant. President of NMPA David Israelite:
“The scale of TikTok’s copyright infringement in the U.S. is likely considerable and deserves scrutiny. We hope that if Congress looks further into matters relating to TikTok that copyright theft is included in the scope of its examination.”
APPARENT LACK OF LICENSES FOR MY WORK
Interesting. So last night I looked into this by checking my own catalog against what TikTok makes available, copies and distributes from their app. Both recordings and compositions that I directly control were available on the service. As far as I know, these recordings and compositions have not been licensed. At least, so far I have found no record of licenses. It is always possible that some licenses transferred from Muisical.ly when TikTok purchased it. But I can’t find any licenses for that service either.
It is important to remember that TikTok is making what are essentially video syncs. Under US copyright law these video sync licenses can not be obtained via ASCAP or BMI. The federal compulsory license for “mechanical” reproductions can also be ruled out as this does not apply. US compulsory mechanical specifically excludes audiovisual content!
I live-tweeted a lot of this last night as I explored what work was available on their service. I also engaged some of this blog’s “irregulars” to verify what I was seeing.
Here is twitter thread. Sorry for the typos.
Screenshot showing TikTok making avaliable my recording I own, following the steps that 30 second snippet appears to be copied into my device. This is not “user-generated ” activity. It appears TikTok is making available, copying and distributing my work. This normally requires a direct license with the owner.
TIKTOK HAS NO DMCA SAFE HARBOR?
Today a little more research was conducted. Oh boy, now it gets really interesting. In order to qualify for the DMCA copyright safe harbor, the infringement must be “User Generated Content.” It is my belief that like Grooveshark, TikTok is actually making infringing performances, distributions, and copies themselves not their users. If my observations can be verified then TikTok would lose its DMCA safe harbor for the same reasons Grooveshark did. I am not an IOS app expert and have just enough technical expertise to get me in trouble. So if anyone out there wishes to verify and correct me I am happy to reflect that in this blog.
With that caveat, my observations after a couple of hours messing around with app:
- TikTok makes available my work and then provides the copy to the user before the user makes any content.
- The copy would seem to be more than “ephemeral” (an important copyright act legal distinction) as at certain stages I can repeatedly access the content even when my device lacked internet connectivity.
- TikTok app “marries” or “syncs” the music to audiovisual content provided by their service or uploaded by the user. Note this is after the recording and composition have been apparently copied and distributed to the user. The infringement has already occurred.
- Before the “marrying” or “syncing” of the music to audiovisual content, if I cut off internet connectivity, the syncing process video to music failed. This suggests TikTok service is doing the syncing, not the user.
- Only after all this has occurred does the user “publish” the work. This is long after many activities requiring licenses, and thus infringement has occurred.
WHEN IS CODING A KLUDGE AND WHEN IS IT A CRIMINAL CONSPIRACY?
There is something extraordinarily clunky and strange in the sequence of steps one takes to search for music tracks. Why not just list tracks available. Log in and try to make a video (you can stop before publishing if you like). You’ll see what I mean. Also, the choice of wording seems to suggest the peculiar vocabulary of a lawyer when a company is trying not to be sued.
For example, the clunky search results box seems to imply an algorithm (“4 matched sounds”) has provided you with a selection of songs that are just sort of mysteriously found in an unnamed digital domain. The wide-open internet? TikTok owned/leased servers? What I’m getting at is they don’t use a term like “available” which might imply a license for works. Maybe this seems petty to you, but it seems a deliberate attempt at obfuscating where these “matched sounds” come from. In addition, shouldn’t there at least be some notice at this point that the TikTok user could be committing Copyright Infringement? I mean if I saw a song in a TikTok search result and used it I would like to know that I’m potentially gonna be sued for copyright infringement.
On more popular tracks there are videos already associated with these tracks and this phrasing would make your average user think, “oh these are already uploaded by someone else and I’m using their file.” However, on my tracks, especially the most obscure tracks, there are no videos associated. So where exactly is this “matched sound” coming from. How did it end up in the TikTok search results? Someone had to put it there. This is too clever by half. Also at some point, someone somewhere has edited these “matched sounds” down to 30-second clips. They all seem to match digital distributors 30-second previews. That doesn’t necessarily mean anything. Where is TikTok getting 30-second previews on a mass scale? Which digital music distributor is providing these previews? Someone somewhere knows something. If the pay scale at these digital distributors is as low as my former music business students claim it should be pretty easy to flip someone with a meager $5,000 reward.
TIKTOK ENCOURAGES THE EXPLOITATION OF “MISSING TRACKS”
Another rather curious feature of TikTok is that it rewards the creators of the first video that accompanies an unexploited “sound.” A fist TikTok music/video sync gets a special “Original” tag and a seemingly higher number of views. Sure at first this seems reasonable. Tik tok has lots of catalog, so it’s good to have it exploited potentially generating views and thus advertising revenue. But if TikTok isn’t really licensing the catalog, isn’t it more likely that this simply encourages users to put new unlicensed work online? How is this any different than Share-Online.biz. They were raided and shut down the past week by German Police. Share-Online was known to reward users that illegally uploaded popular albums, films and video games. My suspicion Share-Online’s major vulnerability will be contributing to mass infringement. Is it possible that TikTok shares the same vulnerability?
THE DOG THAT DIDN’T BARK
Another curious issue. If TikTok’s search function were truly passive, why is it that the part of my catalog that is available on TikTok does not include the compositions that were listed in the Spotify class action lawsuit? I didn’t use all my compositions in the Spotify lawsuit. Essentially the tracks used had the cleanest ownership records. The tracks missing are not just my compositions with copyright registrations. No this is a more subtle detail that would need to be gleaned from court documents. That extra bit of obscure information surfacing here is some kind of tell. What it means I don’t quite know, but I find it extraordinarily curious that apparently someone somewhere knew to eliminate these compositions from the “matched sounds.” If these songs were filtered out it was done by someone with some legal/litigation expertise. It strains credulity to think this was accidental. To be clear, I’m not saying it was TikTok, it could have just as easily been someone further upstream, a third party retained for licensing and identifying tracks, for instance.
Also, suppose coders or lower-level employees at TikTok or third party were instructed to work around these tracks. That’s coming awful close to conspiracy. And you’ve already got mass copyright infringement going on, so can you all say “RICO?”
Now there are other ommissions of compositions and recordings from the matched sounds. But these are all controlled by Universal Music Group and its subsidiaries. I would assume from this that UMG has not yet licensed TikTok, or is in some sort of dispute with the app. But this does not fully explain the other missing tracks. Again I could be wrong. This is not a smoking gun, but it deserves investigation from someone other than me. Law enforcement perhaps?
Put a Digital Executive in Jail in 2020
To be clear. I have no plans to file any copyright lawsuit against TikTok. I’ll let someone else do that. I’ve graduated from that league. I’m much more interested in working with law enforcement. After 20 years of artists and rightsholders fighting these fucks we need law enforcement to step up and launch a criminal investigation. It’s a pattern. My experience is that these services make so much fucking money they have learned it’s cheaper to pay the fine or lump sum settlement. Investment banks like Goldman Sachs will continue to downplay the criminality of these companies “business models” to potential investors and your fucking pension fund will end up holding the bag. The C-suite will walk away having cashed in their stock and the cycle will repeat again. The only thing that will scare these pricks is Jail time. It would be so much more efficient for courts; artists would be so much better off, and this shit wouldn’t keep happening. Perp-walked a single digital music executive into an LA federal courthouse (Or New York or Nashville) and this shit will stop really fast. #PutADigitalMusicExecutiveInJail2020.
PS: I notice there is some unfounded speculation about my resignation from the MLC. Simply put, I don’t have the bandwidth to do this kind of research and also sit on the unclaimed funds committee of the MLC. I’m the bad cop. This is my calling. I like to make the bad guys lives miserable. Every hour I spend on MLC work is one less hour I spend doing this.