CMU Daily 12.02.21: Safe harbour in the spotlight as tech platforms questioned as part of Parliament's streaming inquiry, TikTok's deal with Oracle and Walmart on hold as Joe Biden's government reviews data concerns

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Safe harbour in the spotlight as tech platforms questioned as part of Parliament's streaming inquiry
The digital services were finally brought into the conversation as part of Parliament's big inquiry into the economics of streaming this week.

Though, while much of the inquiry to date has focused on the economics of Spotify-style streaming services, the platforms in the spotlight were YouTube and SoundCloud. And while both those companies do operate premium subscription set-ups like Spotify, their respective user-upload platforms are much more significant.

The real focus for this discussion, therefore, was the pesky copyright safe harbour, and the responsibilities of safe harbour-dwelling services when it comes to removing unlicensed music.

Safe harbour is, of course, the one aspect of the multi-layered debate around the streaming business that generally unites the music community.

Artists, songwriters, record labels and music publishers have all long argued that user-upload platforms have exploited a safe harbour actually intended for internet service providers and server hosting companies, in order to build music services without licences at all from the music industry, or to strengthen their negotiating power when securing such licences, so that they can ultimately make lower payments to the music community.

Earlier in the day, the boss of record label trade group BPI, Geoff Taylor, provided a quick overview of what the copyright safe harbour is, and the issues it has created for the music industry. He said: "Safe harbour is essentially a legal protection that has been granted to internet companies where their users upload content. Essentially, it says that if the users upload content - provided that you take it down, if you receive a notice, because it is illegal - then you are not liable for that".

That protection has been employed by outright piracy operations, Taylor said, who claim they are covered by safe harbour because they respond to takedown requests. Except content is re-uploaded to the piracy sites as soon as it is taken down, putting a huge strain on copyright owners who have to keep reissuing takedowns.

However, it also impacts on licensing negotiations with what are basically legitimate businesses. "Certain services use [safe harbour] in negotiations", Taylor explained, "to say, 'I don't even need a licence from you, Warner Music, or independent label, I will pay you this much and you can be happy with that, because otherwise we will operate without a licence'".

"The existence of the safe harbour changes the negotiation substantially", he went on. "That is why you see that huge differential in per stream rates between user-uploaded content on YouTube, for example, and other streaming services".

The music industry would like UK lawmakers to reform the safe harbour in two ways. First, to increase the specific liabilities of user-upload platforms that claim safe harbour protection, which is what the 2019 European Copyright Directive seeks to do through its article seventeen.

And secondly, to introduce some sort of takedown-and-stay-down obligations, whereby all safe harbour dwelling platforms would be obliged to keep any one piece of content offline once they'd received a takedown notice about it. The latter is part of the safe harbour reform proposals that began circulating around US Congress late last year.

When the aforementioned copyright directive was being debated in Europe, the safe harbour element of that debate was very much positioned as the music industry versus YouTube. Though plenty of other user-upload and social media platforms exploit the safe harbour too.

And while SoundCloud has enjoyed a much more positive relationship with the music community in recent years, that wasn't always the case, again mainly because of safe harbour tensions.

That said, both YouTube and SoundCloud do operate takedown-and-stay-down systems already, so in their cases the question is more whether safe harbour impacts on the licensing deals the two companies have negotiated.

Needless to say, YouTube's rep on Wednesday, Director Of Government Affairs & Public Policy Katherine Oyama, was keen to defend the principle of safe harbour and her company's use of it.

"If we look at safe harbours, they exist in pretty much every modern economy in the world", she argued. "They have been credited as being a key foundation for the vibrant digital economy that the UK has. I can say from the tech sector, not only do we see creativity flourishing, but the digital economy in the UK is such an important place for start-ups, fintech and edtech, and safe harbours have been credited as creating a foundation of certainty that allows investment in services".

And as for the music industry, Oyama went on, the safe harbour allowed YouTube to build a massive user-generated content community, and then a significant micro-licensing platform that generates income for artists, songwriters, labels and publishers when those online creators use their songs and recordings in their videos.

"Many of the partners we work with [in the music industry] receive more than half their revenue every year from the user-generated side", Oyama claimed. And as the streaming market continues to evolve, and streaming revenues continue to grow, "we see the UGC side truly powering a lot of that growth in the industry", she reckoned.

It is true that on one level the music industry's love/hate relationship with YouTube over the years has been complicated because the Google site is many things. It's a streaming service, it's a marketing platform, it's a media platform, it's an influencer platform, it's a micro-licensing platform. And how YouTube connects with the music industry, and the value it delivers, in revenue terms or otherwise, is different depending on which of those aspects you focus on.

However, from a music industry perspective - it's great when platforms like YouTube provide new marketing channels and unlock new micro-licensing revenue streams - but it's a problem when those platforms also compete head-on for users with Spotify-style streaming services which pay higher royalties to the music industry.

That's a point Downtown Music's Roberto Neri made earlier in the day, speaking as Chair of the UK's Music Publishers Association. The main YouTube platform - not just the standalone YouTube Music subscription set-up - is a music service, he argued. Meaning it is competing with Spotify-type services.

The music industry would like the premium services to increase their £9.99 a month price-point, he noted, "but they can't when YouTube has such a mammoth offering and is almost a default for the consumer to go to. Even the five second ad you have to watch, and click 'skip' on when you can, is not much of an inconvenience".

Of course, although YouTube has traditionally been presented as the music industry's big foe when it comes to safe harbour - and, as noted, there were some run-ins with SoundCloud for a time - both platforms have much better relationships with the music community today, even if some tensions remain in YouTube's case.

And, in the user-generated video content space, a TikTok-led shift where platforms increasingly want to include a music library and editing tools within their apps, has shifted things somewhat. Offering such a music library needs music licences, which increases the negotiating power of the music companies, even when some users continue to sync in music outside the app.

However, there will always be new platforms emerging that can rely on the safe harbour to put off securing licences, or to strengthen their negotiating hands once licensing talks begin. And that is why the music industry still wants the pesky safe harbour reformed.

At the moment, some of the key safe harbour dwelling platforms in the spotlight are in the livestreaming domain, with Amazon's Twitch getting particular criticism from the music community, in the UK, the US, and elsewhere.

MPs were meant to be questioning Twitch's General Counsel Steve Bené on Wednesday - and he was introduced at the start of the online session - but, presumably because of some technical problems, he didn't actually speak during the hearing.

Given that Twitch et al are now a key part of the ongoing safe harbour debate, presumably MPs will try to get him back for a future hearing. Meanwhile, you can follow all our coverage of the inquiry into the economics of streaming via this CMU timeline here.

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TikTok's deal with Oracle and Walmart on hold as Joe Biden's government reviews data concerns
The plan to sell a slice of the TikTok global company to American firms Oracle and Walmart could be abandoned because of the change at the top of the US government. Reports that the Oracle/Walmart deal could be dropped came as the US Justice Department asked a court to pause ongoing legal wrangling over former President Donald Trump's executive orders banning TikTok and its Chinese owner Bytedance from operating in America.

Trump, of course, banned Americans from "transacting" with Bytedance and ordered the Chinese firm to sell off any US-based assets via two executive orders last summer. The orders were seen as part of Trump's efforts to seem tough on China ahead of last year's Presidential election, although they were justified by concerns that had been expressed about the TikTok platform on both sides of the political divide.

Those concerns relate to whether or not the Chinese government has access to TikTok's global userbase and user data, because Bytedance is a China-based company. For its part, Bytedance has insisted those concerns are unfounded, and sought to reassure law-makers of that fact.

However, once Trump added TikTok to his 'tough on China' target list, Bytedance also tried to placate the US government by getting American companies involved in its global business, especially on the data management side. Hence the deal with Oracle and Walmart.

It remained unclear whether that deal was sufficient to placate Team Trump, with the President in particular suggesting that he wanted a complete sale of TikTok US to American investors, alongside some kickback for the US taxpayer.

With Trump's executive orders set to come into effect in September and November - and with government approval of the Oracle/Walmart deals far from certain - TikTok also got its lawyers on the case, securing injunctions putting on hold any actual ban against the video-sharing app.

That was based on the argument that the legal powers cited by Trump in his executive orders had limitations when it came to "personal communications" and the sharing of "informational materials".

The US Justice Department was busy appealing those injunctions. And it is those appeals that government officials asked to put on hold this week. That's because, with President Joe Biden now in charge, a new review is underway to assess whether the data concerns about TikTok are actually justified.

With that review in action, the Wall Street Journal cites sources as saying Bytedance has now shelved its plan to sell a slice of TikTok to Oracle and Walmart, on the off chance the Biden team are satisfied that the Chinese company is already sufficiently protecting the data of US citizens, and therefore Trump's executive orders from last year can be officially cancelled.

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Britney Spears' father remains co-conservator, but trust granted equal power over her affairs
In a week when yet more scrutiny has been placed on the conservatorship of Britney Spears, thanks to a new documentary that aired last week, her father Jamie Spears has lost his latest effort to regain sole management of her affairs.

However, he does remain her co-conservator, after a judge ruled that he and the Bessemer Trust company should have equal decision-making power.

Jamie Spears objected to his daughter's request that the Bessemer Trust - which was appointed as co-conservator last year - should be placed in a position of equal power with him.

Meanwhile Britney's lawyer told the court that she would still rather her father wasn't part of the situation at all. "It's no secret that my client does not want her father as co-conservator", said attorney Sam Ingham, "but we recognise that removal is a separate issue".

Ingham argued against Jamie Spears request to regain sole control of his daughter's finances, saying that: "Mr Spears should not retain authority to pull the plug and hand investments to someone else".

Britney Spears has been unable to manage her own personal and financial affairs since being placed under conservatorship in 2008, following a very public breakdown. Increasingly, fans have been banding under the name #FreeBritney, arguing that she should no longer be in conservatorship at all.

The movement received a boost last week, with a new documentary 'Framing Britney Spears', made by the New York Times and aired on FX and Hulu. The film looks at Britney's treatment in and by the media, and also examines the controversial conservatorship system.

An accounting hearing in Spears' case is set for 17 Mar.

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Shia LeBeouf denies FKA Twigs' abuse claims
Shia LeBeouf's legal team have formally denied all the claims of abuse that were made against him by former partner FKA Twigs in a lawsuit last year. This despite the actor saying in a statement immediately after the legal action was originally filed that he has "been abusive to myself and everyone around me for years".

The couple dated for about a year in 2018 and 2019, after working together on the film 'Honey Boy'. FKA Twigs, real name Tahliah Barnett, said that she agreed to move in with LaBeouf after he employed a "charm offensive", which is, she said she now realises, "a tactic … he used on other women".

"LaBeouf was engaging in grooming - gradually gaining Tahliah's trust and confidence with the intent of abusing her", the lawsuit stated. "Over a course of months, LaBeouf engaged in a continuous stream of verbal and mental abuse toward Tahliah, belittling her and berating her after the slightest perceived 'insult' by LaBeouf. LaBeouf isolated Tahliah from her friends and family, making it so her daily existence and routine revolved around LaBeouf and only LaBeouf".

In a response filed this week, LeBeouf's lawyers say that he "denies, generally and specifically, each and every allegation contained in [Barnett]'s complaint, denies that [Barnett] has sustained any injury or loss by reason of any act or omission on the part of [LaBeouf], and denies that [Barnett] is entitled to any relief or damages whatsoever".

They also request that her claim of sexual battery should be dismissed because "none of the acts alleged were based on sex and/or the conduct was not sexual", and say that actions described by Barnett as physical abuse were "reasonably necessary for his self-defence and/or safety".

In December, when Barnett's lawsuit was originally filed, LaBeouf said in a statement to the New York Times: "I'm not in any position to tell anyone how my behaviour made them feel. I have no excuses for my alcoholism or aggression, only rationalisations. I have been abusive to myself and everyone around me for years. I have a history of hurting the people closest to me. I'm ashamed of that history and am sorry to those I hurt. There is nothing else I can really say".

Speaking to Rolling Stone yesterday, Barnett's attorney Bryan Freedman said: "Upon being confronted with Ms Barnett's lawsuit, Mr LaBeouf admitted his reprehensible conduct and then checked himself into some type of inpatient treatment. To the extent his five week treatment has been focused on denials and gaslighting, he may want to revisit the type of help he is receiving. Mr LaBeouf's legal tact and recovery plan, while not surprising, are poorly misguided self-help strategies".

In response to that, LaBeouf's lawyer Shawn Holley said: "A lawyer issuing general denials to all the allegations in a lawsuit is standard procedure in civil practice and signals nothing about Shia's past statements or his acceptance of responsibility for things he has done wrong. Nothing has changed".

Barnett has given a number of interviews about her relationship with LaBeouf since filing her lawsuit. However, yesterday she was instead focussed on a new partnership with Getty Images. The company is opening up its Hulton Archive, which holds a collection of images going back to the 1800s, much of it covering black history in the US. Images from the collection are being made available for non-commercial use without charge.

"It was the artist Kandis Williams who told me how much of our history was in the Getty Images Archive", says Barnett of that project. "We were discussing how powerful it would be to make this content available to black creators and educators - enabling us to put these pieces together and make our history accessible for generations to come".

Getty will also be providing various mechanisms of support focused on black history. More details on the project will be released over the next few months.

Head Of Content at Getty Images, Ken Mainardis, adds: "Knowing the past opens the door to the future; we are pleased to partner with FKA Twigs on this ambitious project to preserve and celebrate black history. With this project, we hope to empower black content creators to tell their story of their own history, and to support storytelling as a weapon in the struggle for racial uplift".

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New app hopes to allow grassroots music venues to re-open during COVID-19 pandemic
Ticket security app You Check has announced that it is working with the Music Venue Trust to pilot a scheme to help grassroots live music return amid the ongoing COVID-19 pandemic. Trials will take place at London's 100 Club and Bristol's Exchange venues next month.

Originally developed to combat secondary ticketing, You Check has more recently been focussed on building a system to help venues re-open while COVID restrictions are still in place. The new version of the app, says the company, will provide a "digital health passport" for ticketholders.

It will link up with the government's track and trace system to combine ticket information with proof that a ticketholder has had a recent negative COVID test. So, a little bit dystopian, but this is probably going to be our future - at least in the short term - whether we like it or not. The app will also be able to direct people to testing facilities, in order to get a test at the right time before a show.

"With COVID-19, the incubation period is two to five days", says You Check COO Fred Krefting. "For the honeymoon phase after the test, it's the shorter the better, which means you're good to go to a show for 48 hours. It's important to work alongside government when running these pilots and we're grateful to the [Department For Digital, Culture, Media & Sport] for giving us the go-ahead".

"You Check's identity first solution has a lot of potential to help venues and promoters manage risk", adds Music Venue Trust CEO Mark Davyd. "It has a fast and thorough authentication process which enables health information to be stored against portable digital identity, and Music Venue Trust is pleased to be working with You Check to explore how this technology might form part of a comprehensive process which enables us to reopen every venue safely and revive live".

The 100 Club and Exchange will put on shows running at 25% capacity in March, using the You Check app, in order to test its viability. If successful, it is hoped that it can be used by more venues in the coming months.

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Taylor Swift to release new version of Fearless album "soon"
Taylor Swift has announced that she has finished recording the new version of her 2008 album 'Fearless' and will be releasing it "soon". Probably in April. The first single, a new version of 'Love Story', is out now.

"'Fearless' was an album full of magic and curiosity, the bliss and devastation of youth", she says in a statement posted on Twitter. "It was a diary of the adventures and explorations of a teenage girl who was learning tiny lessons with every new crack in the facade of the faitytale ending she'd been shown in the movies. I'm THRILLED to tell you that my new version of 'Fearless' is done and will be with you soon".

The new version of the album, titled 'Fearless (Taylor's Version)', will also feature six songs that were written for the original record but didn't make the cut. These were songs she "adored", but which were "held back for different reasons".

"Those reasons seem unnecessary now", says Swift. "I've decided I want you to have the whole story, see the entire vivid picture, and let you into the entire dreamscape that is my 'Fearless' album ... Written between the ages of sixteen and eighteen, these were the ones it killed me to leave behind".

That does mean that the already bloated album now has 26 songs on it. The big re-record project could have been an opportunity to refine the release to the ten best tracks. But, you see, re-recording the songs was just too much fun.

"This process has been more emotional and fulfilling than I could've imagined and has made me even more determined to re-record all my music", she says. "I hope you'll like this first outing as much as I like travelling back in time to recreate it".

Swift, of course, isn't really recording new versions of her old songs for fun, but actually out of spite. She embarked on the project because she was angry that her former label Big Machine - and the master recording rights in the albums she recorded for the label - were sold to Scooter Braun in 2019.

Releasing new versions of the songs does mean that she can give fans "the entire vivid picture" of her creative vision. But it also means she can license that music for use in adverts.

She is currently vetoing sync deals on her old recordings (via her control of the accompanying song rights) and the new versions will allow her to fill that gap in the market herself. In fact, the new version of 'Love Story', which is now available in full, was previewed in an advert last year.

Said new version is a pretty faithful recreation of the original, rather than any dramatic reimagining, which isn't creatively very exciting but is good when it comes to sync deals. Not that I'm saying I don't believe Swift when she says this is a creatively fulfilling project for the fans, but... actually, I think that might be what I'm saying.

Anyway, enough of that. The other thing to know about this is that, in her statement, Swift hid a weakly coded message spelling out "APRIL NINTH", which suggests 'Fearless (Taylor's Version)' will be out on 9 Apr.

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RELEASES

Dua Lipa has released new single 'We're Good', taken from the new 'moonlight edition' of her 'Future Nostalgia' album, which is also out today.

Headie One has released new track 'Siberia', featuring Burna Boy. The track is taken from a deluxe edition of his 'Edna' album, which is also out today.

Ariana Grande has released the video for her '34+35' remix, featuring Doja Cat and Megan Thee Stallion.

Kings Of Leon have released new single 'Echoing'. Their new album, 'When You See Yourself', is out on 5 Mar.

A new Phife Dawg track featuring Busta Rhymes and Redman, and titled 'Nutshell Part 2', has been released. The track is taken from a posthumous album from the A Tribe Called Quest co-founder due out later this year.

Karol G has released new single 'Location', featuring Anuel AA and J Balvin.

Syd - of The Internet and Odd Future - has released new solo single 'Missing Out'.

Nasty C and Ari Lennon have released new track 'Black & White', from the 'Coming 2 America' soundtrack.

Ruth B has released a new version of her 2020 single, 'If I Have A Son', featuring the Harlem Gospel Travelers. Originally released in the wake of the death of George Floyd, this rework coincides with Black History Month.

Sharon Van Etten has released 'On Your Way Now', a song that originally appeared in documentary film 'Made In Boise' a couple of years ago, but not available to listen to in full until now.

William Doyle has release new single 'Nothing At All'. The track is taken from his new album, 'Great Spans Of Muddy Time', which is out on 19 Mar.

Fable has released the video for her new single 'Orbiting'. "I wanted the video to capture a sense of the past year of lockdown", she says, "with the audience strapped to the camera rails being led through a series of rooms and corridors, transitioning to the next space through a screen and given a feeling of captivity and apathy, but with a connection".

Kučka has released new single 'No Good For Me'. Her debut album, 'Wrestling', is out on 30 Apr.

Rebecca Black released a remix of her song 'Friday' to mark its tenth anniversary earlier this week. Now that it's actually Friday, it has a video too.

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GIGS & TOURS

Post Malone will play a livestreamed show on 27 Feb to mark Pokémon Day. Is that a thing? Apparently so. And this year marks the 25th anniversary of the, what are they, animals? "I've been a Pokémon fan for a long time", says Post Malone. "So the opportunity to headline the Pokémon Day concert celebrating 25 years is awesome". Look, here's a trailer.

Scarlxrd has announced UK tour dates for November this year, in support of his recently released album 'DXXM II'. Tickets are on sale now.

Check out our weekly Spotify playlist of new music featured in the CMU Daily - updated every Friday.

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Weezer to record Weezer-inspired album
Weezer are currently gearing up for the release of their new album 'Van Weezer' in May, as well as promoting surprise album 'OK Human', which came out last month.

The band are also planning to release four more albums each inspired by a different specific artist, including Elliott Smith, Franz Ferdinand and... Weezer.

The band's Rivers Cuomo announced the 'inspired by' project earlier this month, saying that each record would correspond "to one of the four seasons", so a winter album inspired by Elliott Smith would feature "lots of loss and despair and [be] kind of quiet".

Quizzed further about that project on a new episode of the 'Kyle Meredith With…' podcast - which is out later today - guitarist Brian Bell says that one of the albums will be inspired by Weezer's younger selves.

"I ain't joking", says Bell. "A Weezer-inspired Weezer album. We sometimes refer to [2001 single] 'Island In The Sun' as a sound, as a thing. And one of my favourite quotes from [drummer] Pat [Wilson] was, like, when Rivers got all into co-writing and stuff, I don't know when that was - [2009 album] 'Raditude' period or whatever - Pat goes, 'I want him to co-write with the guy that wrote [1992 single] 'Say It Ain't So'".

And so that, apparently, is what they plan to do. How feasible it is to try to write like yourself in your 50s and yourself in your 20s at the same time remains to be seen. But it seems like a fun experiment to try out.

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