[Well, here it is. Two years ago we warned everyone who would listen that TikTok were apparatchiks for the Chinese Communist Party–by law in China because of the CCP’s civil-military fusion–“If Google is the Joe Camel of data, then TikTok is the Joe Camel of intelligence.” We did panels warning about TikTok including the CEO’s struggle session and the CCP constitution–facts, you know. Tim Ingham warned that on top of everything else, the deals suck. And then there’s Twinkletoes, who is in our view a walking, talking Foreign Agent Registration Act violation.
Emily Baker White warns of the harms from TIkTok we identified 2 years ago coming home to roost.
[According to Emily Baker White writing in Forbes:]
China-based team at TikTok’s parent company, ByteDance, planned to use the TikTok app to monitor the personal location of some specific American citizens, according to materials reviewed by Forbes.
The team behind the monitoring project — ByteDance’s Internal Audit and Risk Control department — is led by Beijing-based executive Song Ye, who reports to ByteDance cofounder and CEO Rubo Liang.
The team primarily conducts investigations into potential misconduct by current and former ByteDance employees. But in at least two cases, the Internal Audit team also planned to collect TikTok data about the location of a U.S. citizen who had never had an employment relationship with the company, the materials show. It is unclear from the materials whether data about these Americans was actually collected; however, the plan was for a Beijing-based ByteDance team to obtain location data from U.S. users’ devices.
I started to write this post in the pre-Neil Young era and I almost feel like I could stop with the title. But there’s a lot more to it, so let’s look at the many ways Spotify is a fail on the Social part of ESG.
Before Spotify’s Joe Rogan problem, Spotify had both an ethical supply chain problem and a “fair wage” problem on the music side of its business, which for this post we will limit to fair compensation to its ultimate vendors being artists and songwriters. In fact, Spotify is an example to music-tech entrepreneurs of how not to conduct their business.
Treatment of Songwriters
On the songwriter side of the house, let’s not fall into the mudslinging that is going on over the appeal by Spotify (among others) of the Copyright Royalty Board’s ruling in the mechanical royalty rate setting proceeding known as Phonorecords III. Yes, it’s true that streaming screws songwriters even worse that artists, but not only because Spotify exercised its right of appeal of the Phonorecords III case that was pending during the extensive negotiations of Title I of the Music Modernization Act. (Title I is the whole debacle of the Mechanical Licensing Collective scam and the retroactive copyright infringement safe harbor currently being litigated on Constitutional grounds.)
The main reason that Spotify had the right to appeal available to it after passing the MMA was because the negotiators of Title I didn’t get all of the services to give up their appeal right (called a “waiver”) as a condition of getting the substantial giveaways in the MMA. A waiver would have been entirely appropriate given all the goodies that songwriters gave away in the MMA. When did Noah build the Ark? Before the rain. The negotiators might have gotten that message if they had opened the negotiations to a broader group, but they didn’t so now they’ve got the hot potato no matter how much whinging they do.
Having said that, you will notice that Apple took pity on this egregious oversight and did not appeal the Phonorecords III ruling. You don’t always have to take advantage of your vendor’s negotiating failures, particularly when you are printing money and when being generous would help your vendor keep providing songs. And Mom always told me not to mock the afflicted. Plus it’s good business–take Walmart as an example. Walmart drives a hard bargain, but they leave the vendor enough margin to keep making goods, otherwise the vendor will go under soon or run a business solely to service debt only to go under later. And realize that the decision to be generous is pretty much entirely up to Walmart. Spotify could do the same.
Is being cheap unethical? Is leveraging stupidity unethical? Is trying to recover the costs of the MLC by heavily litigating streaming mechanicals unethical (or unexpected)? Maybe. A great man once said failing to be generous is the most expensive mistake you’ll ever make. So yes, I do think it is unethical although that’s a debatable point. Spotify has not made themselves many friends by taking that course. But what is not debatable is Spotify’s unethical treatment of artists.
Dissatisfaction with the market centric model has led to a discussion of the “user-centric” model as an alternative so that fans don’t pay for music they don’t listen to. But it’s also possible that there is no solution to the streaming model because everybody whose getting rich (essentially all Spotify employees and owners of big catalogs) has no intention of changing anything voluntarily.
It would be easy to say “fair is where we end up” and write off Ek’s Law as just a function of the free market. But the market centric model was designed to reward a small number of artists and big catalog owners without letting consumers know what was happening to the money they thought they spent to support the music they loved. As Glenn Peoples wrote last year (Fare Play: Could SoundCloud’s User-Centric Streaming Payouts Catch On?,
When Spotify first negotiated its initial licensing deals with labels in the late 2000s, both sides focused more on how much money the service would take in than the best way to divide it. The idea they settled on, which divides artist payouts based on the overall popularity of recordings, regardless of how they map to individuals’ listening habits, was ‘the simplest system to put together at the time,’ recalls Thomas Hesse, a former Sony Music executive who was involved in those conversations.
In other words, the market centric model was designed behind closed doors and then presented to the world’s artists and musicians as a take it or leave it with an overhyped helping of FOMO.
As we wrote in the WIPO study, the market centric model excludes nonfeatured musicians altogether. These studio musicians and vocalists are cut out of the Spotify streaming riches made off their backs except in two countries and then only because their unions fought like dogs to enforce national laws that require streaming platforms to pay nonfeatured performers.
The other Spotify problem is its global dominance and imposition of largely Anglo-American repertoire in other countries. The company does this for one big reason–they tell a growth story to Wall Street to juice their stock price. In fact, Daniel Ek just did this last week on his Groundhog Day earnings call with stock analysts. For example he said:
The number one thing that we’re stretched for at the moment is more inventory. And that’s why you see us introducing things such as fan and other things. And then long-term with a little bit more horizon, it’s obviously international.
Both user-centric and market-centric are focused on allocating a theoretical revenue “pie” which is so tiny for any one artist (or songwriter) who is not in the top 1 or 5 percent this week that it’s obvious the entire model is bankrupt until it includes the value that makes Daniel Ek into a digital munitions investor–the stock.
Debt and Stock Buybacks
Spotify has taken on substantial levels of debt for a company that makes a profit so infrequently you can say Spotify is unprofitable–which it is on a fully diluted basis in any event. According to its most recent balance sheet, Spotify owes approximately $1.3 billion in long term–secured–debt.
You might ask how a company that has never made a profit qualifies to borrow $1.3 billion and you’d have a point there. But understand this: If Spotify should ever go bankrupt, which in their case would probably be a reorganization bankruptcy, those lenders are going to stand in the secured creditors line and they will get paid in full or nearly in full well before Spotify meets any of its obligations to artists, songwriters, labels and music publishers, aka unsecured creditors.
Did Title I of the Music Modernization Act take care of this exposure for songwriters who are forced to license but have virtually no recourse if the licensee fails to pay and goes bankrupt? Apparently not–but then the lobbyists would say if they’d insisted on actual protection and reform there would have been no bill (pka no bonus).
Right. Because “modernization” (whatever that means).
But to our question here–is it ethical for a company that is totally dependent on creator output to be able to take on debt that pushes the royalties owed to those creators to the back of the bankruptcy lines? I think the answer is no.
Spotify has also engaged in a practice that has become increasingly popular in the era of zero interest rates (or lower bound rates anyway) and quantitative easing: stock buy backs.
Stock buy backs were illegal until the Securities and Exchange Commission changed the law in 1982 with the safe harbor Rule 10b-18. (A prime example of unelected bureaucrats creating major changes in the economy, but that’s a story for another day.)
Stock buy backs are when a company uses the shareholders money to buy outstanding shares of their company and reduce the number of shares trading (aka “the float”). Stock buy backs can be accomplished a few ways such as through a tender offer (a public announcement that the company will buy back x shares at $y for z period of time); open market purchases on the exchange; or buying the shares through direct negotiations, usually with holders of larger blocks of stock.
A stock buyback is basically a secondary offering in reverse — instead of selling new shares of stock to the public to put more cash on the corporate balance sheet, a cash-rich company expends some of its own funds on buying shares of stock from the public.
Why do companies buy back their own stock? To juice their financials by artificially increasing earnings per share.
Share Repurchase Program On August 20, 2021, [Spotify] announced that the board of directors [controlled by Daniel Ek] had approved a program to repurchase up to $1.0 billion of the Company’s ordinary shares. Repurchases of up to 10,000,000 of the Company’s ordinary shares were authorized at the Company’s general meeting of shareholders on April 21, 2021. The repurchase program will expire on April 21, 2026. The timing and actual number of shares repurchased depends on a variety of factors, including price, general business and market conditions, and alternative investment opportunities. The repurchase program is executed consistent with the Company’s capital allocation strategy of prioritizing investment to grow the business over the long term. The repurchase program does not obligate the Company to acquire any particular amount of ordinary shares, and the repurchase program may be suspended or discontinued at any time at the Company’s discretion. The Company uses current cash and cash equivalents and the cash flow it generates from operations to fund the share repurchase program.
The authorization of the previous share repurchase program, announced on November 5, 2018, expired on April 21, 2021. The total aggregate amount of repurchased shares under that program was 4,366,427 for a total of approximately $572 million.
Is it ethical to take a billion dollars and buy back shares to juice the stock price while fighting over royalties every chance they get and crying poor? I think not.
Eight states (Massachusetts, Florida, California, New Jersey, Vermont, Kentucky, Nebraska, and Tennessee) just recently announced their investigations into TikTok, which settled an Illinois privacy lawsuit for $92 million in 2021. The coordinated scrutiny arrives as TikTok – which has been described as “legitimate spyware” – remains extremely popular, reportedly boasting north of three billion downloads and more traffic than Google.
Furthermore, TikTok’s userbase reportedly skews young, and higher-ups have capitalized upon the platform’s prominence within demographics that are relatively difficult for companies to reach.
We will release the results of our most recent MLC awareness questionnaire soon, but here’s an interesting data point: 47% of respondents did not feel their voice was heard in crafting the Music Modernization Act. It would be interesting to see if any other survey has asked that question and what the results were.
Electronic music producer and artist Skee Mask (full name Bryan Müller) has officially removed “all” his tracks from Spotify over the platform’s perceived lack of respect for creators, in addition to CEO Daniel Ek’s multimillion-dollar investment in AI-powered defense company Helsing. he Germany-based “Rev8617” artist announced his voluntary Spotify exit on social media, and the much-publicized move follows Skee Mask’s May of 2021 decision to release Pool physically and digitally sans a streaming option.
“it’s done, all of my sh-t is gone from Spotify,” Skee Mask said of his music’s just-finalized removal from the Stockholm-headquartered service. “i have nothing against streaming in general, it’s one of many good ways to make music even more accessible!….
“my music will be available there again as soon as this company starts (somehow) becoming honest & respectful towards music makers. if you really don’t have the money to listen to my music in any other way, feel free to digitally steal it anywhere, BUT don’t give you’re [sic] last penny to such a wealthy business that obviously prefers the development of warfare instead of actual progression in the music business. PEACE!” concluded Skee Mask.
Regarding the “100 MILLION €,” “development of warfare,” and “PEACE” components of the statement from Skee Mask, Daniel Ek’s Prima Materia in November provided €100 million (about $113 million at the present exchange rate) in funding to Helsing, “a new type of security and artificial intelligence company.”
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.
More skullduggery afoot from Google, this time in South Africa–and that’s the fact. Minister Rob Davies and the Chair of the Portfolio Committee of the National Assembly’s Department of Trade & Industry both need to be called out on exactly how this legislation came to so closely resemble Google’s marching orders on safe harbors and pirate utopias. As we’ve seen in Europe, Google has no respect for the nation state or local creators.
Sign the petition here and stand shoulder to shoulder with artists in South Africa against Big Tech’s lobbying onslaught.
The Times dropped the bombshell after digging into the Frank Ocean situation, one that is actively causing the music industry to reinvestigate their practices around exclusives. “Executives at two major record labels said that in recent weeks Spotify, which has resisted exclusives, had told them that it had instituted a policy that music that had benefited from such deals on other services would not receive the same level of promotion once it arrived on Spotify,” Sisario wrote. “Such music may not be as prominently featured or included in as many playlists, said these executives…”
You can’t make this up. Law 360 is reporting that the International Trade Commission (ITC) has been denied authority over digital goods.
The Federal Circuit said Thursday that it wouldn’t reconsider its decision that the International Trade Commission lacks the authority to block the import of digital files, drawing a lengthy dissent from one of its judges.
Keep in mind, the same people now opposed to the ITC having this authority are the same who argued in favor of the the ITC doing so as an alternative to SOPA called the Open Act.
When advocating for the OPEN Act as a good alternative to SOPA and the PROTECT IP Act, the bill’s sponsors touted the ITC as being a great venue for tackling the problems of foreign rogue sites. Among the claimed virtues were its vast experience, transparency, due process protection, consistency, and independence:
For well over 80 years, the independent International Trade Commission (ITC) has been the venue by which U.S. rightsholders have obtained relief from unfair imports, such as those that violate intellectual property rights. Under Section 337 of the Tariff Act of 1930 – which governs how the ITC investigates rightsholders’ request for relief – the agency already employs a transparent process that gives parties to the investigation, and third party interests, a chance to be heard. The ITC’s process and work is highly regarded as independent and free from political influence and the department already has a well recognized expertise in intellectual property and trade law that could be expanded to the import of digital goods.
The Commission already employs important safeguards to ensure that rightsholders do not abuse their right to request a Commission investigation and the Commission may self-initiate investigations. Keeping them in charge of determining whether unfair imports – like those that violate intellectual property rights – [sic] would ensure consistent enforcement of Intellectual Property rights and trade law.
Some of the groups now arguing that the ITC shouldn’t have jurisdiction over digital goods openly supported the OPEN Act. Back in late 2011, the EFF stated that it was “glad to learn that a bipartisan group of congressional representatives has come together to formulate a real alternative, called the OPEN Act.” The EFF liked the bill because the “ITC’s process . . . is transparent, quick, and effective” and “both parties would have the opportunity to participate and the record would be public.” It emphasized how the “process would include many important due process protections, such as effective notice to the site of the complaint and ensuing investigation.”
Google likewise thought that giving the ITC jurisdiction over digital goods was a great idea. In a letter posted to its blog in early 2012, Google claimed that “there are better ways to address piracy than to ask U.S. companies to censor the Internet,” and it explicitly stated that it “supports alternative approaches like the OPEN Act.” Google also signed onto a letter promoting the virtues of the ITC: “This approach targets foreign rogue sites without inflicting collateral damage on legitimate, law-abiding U.S. Internet companies by bringing well-established International trade remedies to bear on this problem.”
You can read the full post here (Strongly Recommended):