Facebook

Is Facebook’s New TOS (Terms Of Service) Heading into Constitutional Waters?

Copyright law and social media are about to get messy and exciting. Ten months into the ongoing COVID-19 pandemic, our industries continue to change, for the good and bad.

Thankfully, the emergence and prevalence of live-streaming technologies such as Zoom, Microsoft Teams, Twitch, Facebook, and others have provided users the means of live-interactive engagements, specifically music artists and producers.

And this technology whose use has been amplified significantly due to the COVID-19 pandemic is now about to play a part in violating our U.S. Constitution. Which brings us to Facebook’s latest announcement and change to its Terms of Service.

Effective October 01, 2020, Facebook’s newest additions to its Terms of Service addressing “music” now speak directly to the use of Facebook Live for content creators and artists:

“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.” (our bolding).

In Facebook’s defense, this is a noble move in attempting to protect the intellectual property of content creators and artists, using the coronavirus pandemic as a catalyst. But under the law, this could present dangerous concerns to intellectual property principles and equal protection granted pursuant to our U.S. Constitution.

The Algorithm is the Catalyst to Constitutional Violations

While I won’t go into how poorly governed that algorithm is and how “selective” it seems to be with determining who is abusing the platform, that same algorithm is destined to meet even more problems in its virtuous attempt to hold users accountable for copyright infringement and protect its users.

While Facebook’s new Terms go on to explain the various scenarios that help clarify these new changes, this isn’t the end-all, leaving room for many questions that will need answering, now or in a courtroom.

From a legal standpoint, the changes to the Terms as it pertains to musicians along with its predictable implementation will soon be an Equal Protection issue under the Fourteenth Amendment and an erosion to the Copyright Clause contained within Article I of the Constitution.

On one hand, the public policy interests associated with protecting intellectual property are always strong in today’s digital age, requiring copyright holders to nurture and protect their “baby”. But on the other hand, weighing those interests against an individual’s right to earn a living creates some tension, especially if those interests discriminate against an entire class of users (or in this case, artists).

DJs Are Now a “Discriminated” Class Under the 14th Amendment

The Equal Protection Clause requires each state to provide equal protection under the law to all people, including all non-citizens, within its jurisdiction.

While Facebook would not traditionally fall under the confines of the Fourteenth Amendment as a social media platform, there is an argument is to be made (and follow me here) that if a court chooses to uphold (in any future lawsuit) the enforceability of the Terms as they are now re-written for musicians, that the State through its judicial system could be acting by and through Facebook as a conduit.

Obviously, not all users are affected here, shifting focus to content creators and musicians. Specifically, DJ’s who by definition, earn a living based on the way they create and distribute music. Those familiar with the electronic dance music scene (EDM) know its common in the industry for DJ’s to take copyrighted works (presumably with proper licensing) and creating an entirely new sound.

The issue here lies with the platform’s “ever-growing” algorithm, which to many users serves as a major disadvantage when it comes to resolving issues of identity verification and holding users accountable for abusive, harassing, and nihilistic behavior, as well as distinguishing copyrighted works from original content.

This is something Facebook needs to address in how it structures its algorithm to target the types of content DJs post versus the average musicians and the steps it takes to verify that content uploaded is legitimate and not infringing.

Modernizing the IP Clause of the Constitution

The second issue involves our own U.S. copyright law, housed under the Progress Clause (or Intellectual Property Clause as it’s referred to):

Congress shall have the power to promote the Progress of Science and Useful Arts, by securing, for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries.” —Article 1, Section 8

When our founding fathers created a framework for protecting our works of art, it was built upon the technological infrastructure of the country at the time. However, the interpretation of it today needs to extend to digital works of creation, including live-streaming technology.

Facebook’s decision to update its Terms for musicians is a double-edged sword, which brings us back to the almighty algorithm.

On one hand, it does push for the continued protection of an artist’s original work and sound, restricting through its algorithm, to detect frequencies and label association for potential infringement; but on the other hand, it automatically (and very likely) restricts content from artists like deejays who take original copyrighted music and spin it into their own sound and collaborations–a practice common to the electronic dance music industry.

So how is it that this algorithm which in my opinion is still very much in its infancy stage is suddenly sophisticated enough to detect licensed, copyrighted material such as those you would find in an electronic DJ’s set? It’s not.

Under the Clause, Congress shall have the power “to promote the Progress of Science and Useful Arts, by securing, for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries.”

But as the new Terms now read which go into effect next month, this no longer holds true. So what does this mean for artists like DJ’s and producers, whose career and daily music practice is heavily rooted in taking copyrighted music and transforming it into something entirely new?

Well, one thing is clear: artists now need to work even harder to push their sound out to their audience on other platforms or risk the potential of falling victim to having their content removed and restricted. And Facebook needs to seriously reconsider the skeleton that defines its algorithm.

What Can We Do?

Good question. Two very serious issues that address very fundamental aspects of our country’s constitutional history. Bringing as many complaints to the public’s court system is the best bet, as it’s unlikely Facebook will be reverting its Terms before they are in effect (despite some user’s already sharing that these changes have already gone into effect).

If I had to predict, this is the beginning of a legal battle not yet born, to better define the role by which Facebook’s algorithm plays and the public policy interests of protecting intellectual property, while not discriminating against the music industry and artists.

The one thing I can say with confidence is that social media and copyright law is about to get lit!

Is Facebook’s New TOS Heading into Constitutional Waters?

Source: Twitter | a photo from a user who received the following message when trying to broadcast their live DJ stream to Facebook via Facebook Live.

Copyright law and social media are about to get messy and exciting. Ten months into the ongoing COVID-19 pandemic, our industries continue to change, for the good and bad.

Thankfully, the emergence and prevalence of live-streaming technologies such as Zoom, Microsoft Teams, Twitch, Facebook, and others have provided users the means of live-interactive engagements, specifically music artists and producers.

And this technology whose use has been amplified significantly due to the COVID-19 pandemic is now about to play a part in violating our U.S. Constitution. Which brings us to Facebook’s latest announcement and change to its Terms of Service.

Effective October 01, 2020, Facebook’s newest additions to its Terms of Service addressing “music” now speak directly to the use of Facebook Live for content creators and artists:

“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.” (our bolding).

In Facebook’s defense, this is a noble move in attempting to protect the intellectual property of content creators and artists, using the coronavirus pandemic as a catalyst. But under the law, this could present dangerous concerns to intellectual property principles and equal protection granted pursuant to our U.S. Constitution.

The Algorithm is the Catalyst to Constitutional Violations

While I won’t go into how poorly governed that algorithm is and how “selective” it seems to be with determining who is abusing the platform, that same algorithm is destined to meet even more problems in its virtuous attempt to hold users accountable for copyright infringement and protect its users.

While Facebook’s new Terms go on to explain the various scenarios that help clarify these new changes, this isn’t the end-all, leaving room for many questions that will need answering, now or in a courtroom.

From a legal standpoint, the changes to the Terms as it pertains to musicians along with its predictable implementation will soon be an Equal Protection issue under the Fourteenth Amendment and an erosion to the Copyright Clause contained within Article I of the Constitution.

On one hand, the public policy interests associated with protecting intellectual property are always strong in today’s digital age, requiring copyright holders to nurture and protect their “baby”. But on the other hand, weighing those interests against an individual’s right to earn a living creates some tension, especially if those interests discriminate against an entire class of users (or in this case, artists).

DJs Are Now a “Discriminated” Class Under the 14th Amendment

The Equal Protection Clause requires each state to provide equal protection under the law to all people, including all non-citizens, within its jurisdiction.

While Facebook would not traditionally fall under the confines of the Fourteenth Amendment as a social media platform, there is an argument is to be made (and follow me here) that if a court chooses to uphold (in any future lawsuit) the enforceability of the Terms as they are now re-written for musicians, that the State through its judicial system could be acting by and through Facebook as a conduit.

Obviously, not all users are affected here, shifting focus to content creators and musicians. Specifically, DJ’s who by definition, earn a living based on the way they create and distribute music. Those familiar with the electronic dance music scene (EDM) know its common in the industry for DJ’s to take copyrighted works (presumably with proper licensing) and creating an entirely new sound.

The issue here lies with the platform’s “ever-growing” algorithm, which to many users serves as a major disadvantage when it comes to resolving issues of identity verification and holding users accountable for abusive, harassing, and nihilistic behavior, as well as distinguishing copyrighted works from original content.

This is something Facebook needs to address in how it structures its algorithm to target the types of content DJs post versus the average musicians and the steps it takes to verify that content uploaded is legitimate and not infringing.

Modernizing the IP Clause of the Constitution

The second issue involves our own U.S. copyright law, housed under the Progress Clause (or Intellectual Property Clause as it’s referred to):

Congress shall have the power to promote the Progress of Science and Useful Arts, by securing, for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries.” —Article 1, Section 8

When our founding fathers created a framework for protecting our works of art, it was built upon the technological infrastructure of the country at the time. However, the interpretation of it today needs to extend to digital works of creation, including live-streaming technology.

Facebook’s decision to update its Terms for musicians is a double-edged sword, which brings us back to the almighty algorithm.

On one hand, it does push for the continued protection of an artist’s original work and sound, restricting through its algorithm, to detect frequencies and label association for potential infringement; but on the other hand, it automatically (and very likely) restricts content from artists like deejays who take original copyrighted music and spin it into their own sound and collaborations–a practice common to the electronic dance music industry.

So how is it that this algorithm which in my opinion is still very much in its infancy stage is suddenly sophisticated enough to detect licensed, copyrighted material such as those you would find in an electronic DJ’s set? It’s not.

Under the Clause, Congress shall have the power “to promote the Progress of Science and Useful Arts, by securing, for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries.”

But as the new Terms now read which go into effect next month, this no longer holds true. So what does this mean for artists like DJ’s and producers, whose career and daily music practice is heavily rooted in taking copyrighted music and transforming it into something entirely new?

Well, one thing is clear: artists now need to work even harder to push their sound out to their audience on other platforms or risk the potential of falling victim to having their content removed and restricted. And Facebook needs to seriously reconsider the skeleton that defines its algorithm.

What Can We Do?

Good question. Two very serious issues that address very fundamental aspects of our country’s constitutional history. Bringing as many complaints to the public’s court system is the best bet, as it’s unlikely Facebook will be reverting its Terms before they are in effect (despite some user’s already sharing that these changes have already gone into effect).

If I had to predict, this is the beginning of a legal battle not yet born, to better define the role by which Facebook’s algorithm plays and the public policy interests of protecting intellectual property, while not discriminating against the music industry and artists.

The one thing I can say with confidence is that social media and copyright law is about to get lit!

About Andrew-Rossow Andrew

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. He provides a unique perspective on new, emerging technologies, social media crimes, privacy implications, and digital currencies. He has written for Forbes, Bloomberg Law, AboveTheLaw, among many others.

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