October 2019 – Page 2 – The Trichordist

TikTok: Nothing Says Chinese State Influence like Censorship and Mass Copyright Infringement Pt I

TikTok has recently been in the news for two reasons.

CENSORSHIP

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.

Start here:

1/x There has been some news that Tik Tok is using music without proper licenses. Specifically without licenses from the songwriter. So I decided to investigate. By checking my own catalogue. What I found was astonishing. First I performed a search for a particular cracker track. pic.twitter.com/P7COGQICF4

— David C Lowery (@davidclowery) October 18, 2019

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.

October 18, 2019October 19, 2019 by Dr. David C Lowery

Guest Post: @ericdharvey Misses Music Twitter’s Defining Feature: Refuse Licenses and Pay Zero Royalties via @ArtistRights Watch

by Chris Castle

Eric Harvey has a great must-read article in Pitchfork about what he describes as “Music Twitter” (“How Twitter Changed Music“). Mr. Harvey makes that case that Twitter was designed with both music and the music business in mind. That is certainly true. Twitter couldn’t be a more perfect way for pop and rap stars to connect with their fans and introduce new music. If willing to put in the time (aka free labor for Twitter), artists from any genre can find it useful. Unbelievable numbers of recordings are promoted, linked, streamed and talked about on Twitter.

Mr. Harvey makes a point that many of us probably didn’t know:

When Twitter was dreamed up, in fact, it was with music in mind. “This is why we built this thing! For concerts and music shows!” Noah Glass told fellow co-founder Jack Dorsey in 2006, according to Nick Bilton’s book, Hatching Twitter. At that point, when the site had only a handful of users, Glass and Dorsey road-tested Twitter at Coachella and attempted a partnership with the 2007 VMAs. As the site grew in popularity, Bilton recounts, pop stars made pilgrimages to the company’s modest San Francisco headquarters, like when a couple of Twitter engineers “found a member of the band blink-182, half-asleep and half-drunk, pouring a small bottle of gin into a bowl of Fruity Pebbles cereal, then chowing down on breakfast.”

But after you read the post, I think you may realize that there’s a dog that didn’t bark–despite the fact that some of Jack Dorsey’s best friends may be musicians, Twitter has consistently refused to even accept the premise that the site needs licenses and should pay royalties. However “intertwined” Twitter may be with the music business, the company steadfastly refuses to acknowledge that value by respecting business of the artists, songwriters, producers, musicians and vocalists who drive what Mr. Harvey shows pretty conclusively is a big chunk of Twitter’s value.

Mr. Harvey dives into the many connections between the company’s founders who designed their product to free ride on the artists they claim to admire. It is clear that Twitter owes a lot of its success to the star making machinery behind the popular song:

Judging by the numbers alone, Twitter is more deeply intertwined with music than any other industry. Four of the top five—and half of the top 20—most-followed Twitter accounts are solo musicians. More than movie stars or major athletes, whose work is more obviously collaborative and done according to others’ scripts, the pop star/fan relationship maximizes what Twitter does best, fostering emotional connections rooted in the personal authenticity of a single, spectacular figure. This has led to an environment where millions of Twitter users are there purely to serve as foot soldiers in their idol’s digital army, and where the tantalizing (or mortifying) possibility of direct contact is always present.

Maybe it’s time that Twitter did the right thing and stopped abusing the absurdly outdated DMCA safe harbor game of whack a mole. Please let’s not be told that Twitter’s value is exposure or that data is worth having your rights ignored. Data may be the new exposure, but you do have to ask how do people like Jack Dorsey sleep at night.

October 18, 2019October 18, 2019 by thetrichordist

Guest Post by @cagoldberglaw: Scared as Hell: Section 230 Denies Access to Justice, Not Free Speech Protection via @musictechpolicy

By Carrie A. Goldberg

[Chris Castle editor’s note: We should all be aware that in addition to the “value gap” of the DMCA safe harbor, Big Tech also has another safe harbor in Section 230 which I call the “values gap.” You have to ask yourself, how do they sleep at night? We are honored to be able to post this article by one of the great lawyers of our time, Carrie Goldberg, author of the new book Nobody’s Victim: Fighting Psychos, Stalkers, Pervs, and Trolls and victim rights lawyer extraordinaire. Carrie is going after Grindr for putting a product into commerce with a design defect that allows stalkers to use the app to assault users. This argument is similar to the Ford Pinto’s exploding gas tank. This post started as a Twitter thread, and we’re very pleased that Carrie agreed to let us post it as an article.]

For the past 2-1/2 years my firm has been in the fight of our life in the case Herrick vs. Grindr which involved owners and operators of the Grindr gay dating app refusing to assist our client, Matthew Herrick, when mobs of strangers were coming to his home to have sex with him.

Using Grindr’s geolocating and other technology, Herrick’s ex impersonated him and directed over 1200 men to him in person. Sometimes 23 a day. Herrick went to the police and got an order of protection. Nothing Herrick was able to do helped to stop this assault.

And neither did Grindr. No, Grindr said in court they didn’t need to help Matthew because the Communications Decency Act Section 230 protected them from any legal responsibility for harms caused by their app. The district judge agreed. We appealed it to a panel of judges sitting on the Second Circuit Court of Appeals.

The Second Circuit panel also said Grindr bore no responsibility to Matthew and that the earlier judge was right to throw the case out. We sought a rehearing en banc before all the judges on the Second Circuit trying to explain that we were not suing for words or communications from a user (for which Grindr would get Section 230 immunity) but rather, we were suing Grindr because its product was defective.

Why? Because Grindr designed their product without an internal system or other protective functionality to save users and the world at large from people abusing their product to impersonate, stalk, prey—easily foreseeable harms that a reasonable person could have predicted might happen before Grindr was put into commerce.

In August we submitted a cert petition for the Supreme Court of the United States to review the Second Circuit’s ruling and reverse it. We’ll know Oct. 1 if they will. In my practice, I see a lot of people like Matthew whose lives were destroyed because apps and social media companies ignored them. People who are victims of revenge porn, sextortion, harassment, doxxing, horrible content coming up in search engines, all of which could be prevented by eliminating these design defects and putting people over profits.

These Big Tech companies have ZERO incentive to build safety precautions into their products because this 1996 law Section 230 has been interpreted by the courts to shield tech companies from just about any responsibility. It means we as individuals CAN NOT sue them. A bunch of politicians, lobbyists and even some professors will say that Section 230 protects our speech.

That is not true.

What Section 230 does is remove options for us as individuals when lives are destroyed through tech. Our courts are no longer an option for us to get justice. I can’t overstate how extreme it is for there to be companies that are UNTOUCHABLE by our courts.

Our tort system is centuries old and it is the great equalizer enforced by the courts—an entire branch of government and integral to our entire concept of checks and balances. In almost every kind of harm, for a couple hundred bucks a single person can use the tort law and the courts to hold the most powerful person or company responsible if they caused us harm and we can stop them from further hurting us which is Matthew’s case.

The ramifications of Section 230 immunity don’t just impact those harmed. Section 230 harms us all as a society. We are entering an era of greater surveillance, Artificial Intelligence, self-driving cars, facial recognition technology. Companies developing this have ZERO incentive to be thinking about how their products will be abused and exploited by bad actors. Why? First and foremost because there is no pressure on them from the threat of litigation.

So in addition to Matthew’s battle with the courts, my big discovery is that our politicians are now inserting language into our international trade agreements that echos Section 230.

If they succeed and we are injured by some other country’s negligent tech product, app or social media company, our country is immunizing those companies too. Those international companies now can’t be sued by us either.

Look at Article 19.17 of NAFTA 2.0 . nafta excerpt

The language, which is even MORE expansive than Section 230 in protecting tech companies was already included in NAFTA.

And we have some politicians working to include it in trade deals with Japan, India, and the EU. This is INSANE.

These politicians are taking away our rights against tech companies in our own country and others. This means they can all be as exploitive of users and privacy and human rights as they want.

Everybody should be scared as hell. Section 230 is NOT about online speech. It is about access to justice. No other industry is immune like this. These companies basically have sovereign immunity. The most powerful, wealthy, omniscient, omnipotent industry in the history of the world has as much or more protections from being sued as a government.

We need to hold our politicians accountable. We need to expose those who are fighting against our individual rights and voting to exclude these companies from judicial systems around the world. Additionally, if our American companies don’t like changes we make to Section 230, they’ll just relocate to a country with whom we have a trade agreement.

Who in congress is THAT owned by Big Tech that they would betray the American people and strip them of all recourse for injuries that occur online?

October 8, 2019October 8, 2019 by thetrichordist