RICO SUAVE: A Layman’s Argument For A Law Enforcement Investigation of TikTok

Maybe I shouldn’t say this is an “argument.” This is a plea. A rant. A tirade. A demand that our government enforce the rules and laws enacted by our elected representatives.

The last twenty years has been one venture-funded digital music “service” asshole after another ripping off songwriters and musicians with the same bullshit promise of “empowering” artists. It was bullshit before there was an “@” or “.com” attached to the swindle.  And it still is a swindle. I’m pleading for someone in law enforcement to actually do their job. I’m not an attorney but when I read the applicable state and federal laws it is profoundly clear that most of these mass copyright infringing “services” are engaged in organized criminal activity. Yet rarely is anything done. And by letting them get away with it, time after time, year after year, law enforcement has essentially given the green light to the operators of these services to rip us off. Our only recourse is to resort to civil actions. These take years to complete. When these cases are settled the “services” and executives end up paying out a pittance, a small sliver of the profits they pocketed. Then they do it all over again. The same fucking scumbags. Aided by the exact same attorneys, VCs, investment bankers, bought off academics, fake NGOs and (worst of all) artist managers and former label executives now on the payroll of Swindle-dot-com. It is a racket in both the common and legal sense of the word. And the facts are staring everyone in the face.

I swear give artists one good solid investigation and everything will change. Put one of these digital music fucks in jail. Clawback a single VC’s profits. Disbar a single attorney. Suspend a single SEC license. Revoke the tax-exempt status of a single fake NGO and i promise artists can finally stop clogging up the courts with endless civil copyright proceedings.

And may I humbly suggest we start with the TikTok?

TikTok is probably one of the most popular apps in the world.  The music-oriented short video app has been reportedly downloaded over a billion times.  If you’ve never heard of TikTok just ask your kids. TikTok is owned by an opaque Chinese company privately valued at $73 billion dollars. TikTok was recently embarrassed when a memo leaked that appeared to instruct moderators to censor content sensitive to the Chinese Government.  You know Tibet, Tiananmen Square, Uighur re-education camps you get the idea. The Washington Post also reports that Hong Kong protests are being censored on the platform.

Cute little TikTok app an instrument of Chinese state influence? Yeah all fun, games and Taylor Swift lip syncs until someone gets put in a re-education camp. Sorry to spoil the fun folks.

The Committee on Foreign Investment in the UNited States has finally started an investigation of the company for its handling of US citizens private data and the suppression of facts that are inconvenient to the Chinese Government. You know facts like Uighur concentration camps and the mere existence of Tibet.

But as bad as they are with suppressing inconvenient facts and privacy violations, they actually profit from IP theft.

What most people don’t realize is that TikTok lacks the most basic licenses for most of its content.  I’ve spent the last few weeks researching this.  Many of you know that I’ve been all over this on twitter with friends and strangers often pointing to new evidence or web documents that support my assertions. I could be wrong. But I don’t think so.  73 billion-dollar Chinese company with a stunning lack of licenses.  Mind-boggling. US creators are clearly being ripped off.

ARGUMENT THAT THE DMCA “SAFE HARBOR” DOES NOT APPLY

TikTok’s need for licenses and massive copyright infringement is clear.  And it is also clear they can not hide behind the DMCA.  I quote from my original post:

After a couple of hours playing around with app it appears:

1.TikTok makes available my work and then provides the copy to the user before the user makes any content.

2. The copy would seem to be more than “ephemeral” (an important copyright act legal distinction) as at certain stages I repeatedly accessed the content even when my device lacked internet connectivity.

3. 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 apparently been copied and distributed to the user’s device. In other words, the infringement occurs before the user supposedly “publishes” content.

4. Before the “marrying” or “syncing” of the music to audiovisual content if I cut off internet connectivity. The process of marrying the video to music seems to fail. This suggests TikTok service requires sync license, not the user.

5. Only after all sync has occurred does the user have the option to “publish” the work. This is long after TikTok carried out many infringing activities.

As the conversation spilled over onto social media “new shit, came to light.” And perhaps the single most compelling new fact is that Distrokid, an indie distributor popular with DIY artists has a deal with TikTok so “Independent artists can now use DistroKid to get their music into TikTok.”  Good for them.  Distrokid is (of course) partially owned by Spotify.

What is important about this little fact, is it seems to confirm that there exist servers that belong to TikTok (or a contracting party); these servers store copies of recordings and songs on behalf of TikTok; and these recordings and songs are provided under a license to TikTok. Distrokid’s official statement (from the Founder/CEO nonetheless) is clear: “into TikTok.” Thus there is no UGC and DMCA “safe harbor” does not apply. Further, the existence of this license indicates that TikTok is aware they need licenses. As one attorney on twitter noted a license from Distrokid would help prove willful infringement. Also apparently implicated is Engel v Wild Oats.

(Distrokid may want to clarify this is actually the case as certain alternatives could… well let’s just say there might be a lifeboat for one situation).

“Defendants have engaged in a pattern of racketeering activity, as defined in 18 U.S.C. § 1961(5), through the repeated, relentless, and purposeful theft of the IP of others”

The Racketeering Influenced and Corrupt Organizations Act doesn’t just apply to mafia-type organizations. And you don’t have to be a mobster to be charged with racketeering. Any company can get charged if greedy and stupid enough to engage in  (for instance) the repeated, relentless and purposeful theft of the IP of others. In fact, it would seem to be easier to prosecute a corporation, than say someone in the mob, because everyone involved in the corporation has helpfully identified themselves publicly as a member of the organization on LinkedIn. Proving membership is usually the hardest part. Not in this case.

Pattern of racketeering activity?  Two acts of infringement within 10 years of passage of the act? I’d guess we have millions here. Maybe in a single week. And as I demonstrated earlier it’s not like TikTok doesn’t know they need licenses. They’ve entered into licenses with some creators. Wilful infringement.

DECEPTION AT THE HIGHEST LEVELS?

I’d argue at the highest levels of the company executives are engaged in an elaborate ruse to mislead rightsholders about the nature of the infringement.

The TikTok website refers copyright complaints to a process that looks exactly like the DMCA notice and takedown process. But according to US law that process is reserved only for user-uploaded content. It is not for copyrighted work that TikTok is distributing themselves.

I found a few high level executives at TikTok on LinkedIn.  I sent a similar message to several executives. The message read in part:

I am the artist’s rights advocate David Lowery. I’m the songwriter that originally launched the successful class-action lawsuit against Spotify in the US. Any idea how music I control ends up on TikTok? I can’t seem to track down the licenses. Further, if my analysis is correct the way your app appears to work, it looks like your company makes infringing copies before the user adds content. This would mean TikTok can’t claim DMCA safe harbor…

I explain in this article the actions that should be taken going forward:

See here: https://thetrichordist.com/2019/10/18/tiktok-nothing-says-chinese-state-influence-like-censorship-and-mass-copyright-infringement/

But my question is this? If you folks are making so much money now. Why not be a decent human being and license the music?

I received this response from

Thanks for reaching out. TikTok is an exciting way for songs and emerging artists to gain exposure and breakthrough with a wide and varied audience. As a platform for unique and original creative content, TikTok places high value and respect upon intellectual property rights. I would recommend to use the usual channels as this is the fastest way for you to get support. TikTok has copyright policies in place (see the respective website in your location) and copyright infringement notice procedures available to assist. The email address is copyright@tiktok.com. Please note that this is a private message and not a public statement. All the best, Joern

This may seem like a small thing. It isn’t.  It’s major misdirection. The high level executive is directing me towards the DMCA process. This financially benefits TikTok (the hypothetical RICO organization) Because most artists know this is a pointless whac-a-mole™️ routine. A game the artist knows they will never win. So they usually don’t even bother. So it’s material that the company points artists at this process. It gives the impression the users are responsible for the infringing copies. Yet TikTok is clearly making the infringing copies. If this isn’t fraud it should be.

Maybe legal staff and IP counsel at TikTok do not know how their service works. Exactly how the copying and distributing of music files occur on their service. But I don’t think so. The guy who sent me the email response was once the head of licensing for ICE. What is ICE? From the UK PRS for music website:

ICE is the result of a joint venture between PRS for Music, STIM and GEMA with the collective aim of developing the world’s first integrated music copyright, licensing and processing hub, encouraging copyright data accuracy, aggregation of repertoires for multi-territory licences and the elimination of parallel processing against incompatible worksdatabases.

So to consider this the head of content licensing at TikTok who is the former licensing chief for ICE doesn’t know the kind of licenses TikTok requires? Doesn’t know the service can’t rely on DMCA safe harbor process? I call bullshit. Further I suspect this executives knew he was misdirecting me.

I’d start by naming this guy as one of the conspirators and let him roll on everyone else.

Anyone else out there want to join me in a complaint to a US Attorney?

This is unacceptable and criminal behavior. It should not be tolerated from an American company much less a “sharp power” arm of a authoritarian foreign government.

 

 

 

 

 

 

 

 

 

 

 

 

About Dr. David C Lowery

Platinum selling singer songwriter for the bands Cracker and Camper Van Beethoven; platinum selling producer; founder of pitch-a-tent records; founder Sound of Music Studios; platinum selling music publisher; angel investor; digital skeptic; college lecturer and founder of the University of Georgia Terry College Artists' Rights Symposium.