Bloomberg Law
Sept. 24, 2020, 8:00 AM

Facebook Live’s New Music Terms of Service Unfairly Impact Artists

Andrew Rossow
Andrew Rossow

We’ve seen that society can adapt and continue daily affairs during the pandemic with live streaming technology for the classroom, graduation ceremonies, concerts, Bar/Bat Mitzvahs, and even funerals. Covid-19 has also forced musicians and content creators to find new ways to continue producing film, TV, and music.

Musicians have taken to live-streaming platforms like Facebook Live, Instagram Live, Zoom, and other mechanisms to stay relevant and connected with fans, the value of these platforms continues to grow.

However, with the digitization of music and other works, intellectual property laws still need to be honored and respected; a challenge we in the legal field have worked to overcome for many years in efforts toward modernizing the Copyright Act of 1976, which lists basic protections for copyright holders and still in effect today.

Effective Oct. 1, Facebook’s newest additions to its terms of service addressing “music” speak directly to their use of Facebook Live, saying: “You may not use videos on our Products to create a music listening experience…If you use videos on our Products to create a music listening experience for yourself or for others, your videos will be blocked and your page, profile or group may be deleted. This includes Live.”

The new terms will cause economic harm to DJs and musicians who rely on Facebook Live to make a living during the pandemic, while live events remain canceled due to Covid. The new terms also raise questions about the algorithm Facebook uses to decide which DJs and musicians are obeying copyright and IP laws.

What Is the Almighty Algorithm’?

The terms outline the ways Facebook Live can influence how content is distributed and/or restricted, but we must look to the puppet master here that chooses what stays and what goes: the almighty algorithm.

The Facebook algorithm has been subject to scrutiny for years—now more than ever for political reasons—and is how Facebook decides which posts users see, and in what order, every time users checks their news feeds.

Over the years, the algorithm has evolved to adapt to where society stood on the technology spectrum, beginning in 2004. Now in 2020, Facebook is able to determine who a user typically engages with and the type of media in any given post—whether it’s audio, video, or an image.

Facebook Will Harm Against DJs and Musicians

By implementing its new terms, the algorithm has now created two very serious issues for both copyright law and musicians.

First, an entire class of users, DJs, and musicians have now been discriminated against on a global scale. Those familiar with the electronic dance music scene, or EDM, know it is common and a regular practice for the DJ to use copyrighted work (with proper licensing) to transform it into an entirely new sound, rhythm, and beat.

But on a much larger scale, the reason live-streaming platforms like Facebook Live, IG Live, Zoom, Microsoft Teams, and the like have become almost “mainstream” now is due to Covid-19 restrictions. Consequently, DJs and musicians have had a tough decision to make—keep producing their music and survive, with a new revenue stream, or stop in their tracks and be swallowed up from tHurhe pandemic’s effect.

Under the terms, this “black and white” approach of simply restricting any live-stream broadcast from publishing because it contains a licensed, copyrighted work will not suffice. It just cannot.

Second, these changes raise this issue: Is this algorithm sophisticated enough to determine infringement from permissible use?

Definitely not.

Come Oct. 1, is it possible that Facebook’s ever-evolving algorithm is or could ever be sophisticated enough to protect both the interests of copyright holders and content creators like DJs, whose career is based upon taking copyrighted music to transform it into something original?

And how can the system detect and determine whether an artist or creator has the legal right or permissible use to use these copyrighted works?

Again, it cannot. At least not right now.

There have already been some reports from Twitter users that their broadcast has been blocked and/or restricted. Evidently enough, the algorithm (allegedly) now has the ability to again determine what content is copyrighted or licensed, and choose to ban, block, or otherwise restrict its publishing to the platform, even if there are appropriate licensing agreements or creative commons at work.

Too much power for such an under-developed tool. And yet again, too “black-and-white.”

What Can We Do?

Unfortunately, other than complain, nothing. Unless Facebook decides to have an epiphany and put some other mechanism in place that aides and/or guides the algorithm in coming to the conclusions on whether to restrict or remove content, we just have to wait and see the effect.

This is why the burden comes back on us as attorneys to continue advocating for the protection of intellectual property by putting forth arguments on how we can modernize and amend the Copyright Act of 1976 into today’s digital age of social media, with respect to live-stream technology.

Additionally, artists will continue to utilize the platform to distribute their work and engage with fans. It’s how they earn a living, which Facebook has encouraged through its business manager and advertising programs.

Needless to say, our world of intellectual property and how social media works with it (or against it) is about to get very exciting.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Author Information

Andrew Rossow is an internet and technology attorney, an adjunct cybersecurity law professor at the University of Dayton in Ohio, and a media consultant for ABC, FOX, and NBC in Ohio. He specializes on new and emerging technologies, social media crimes, privacy implications, and digital currencies.

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