Facebook's New Terms of Service Requires an Algorithm Change
Facebook's new Terms of Service for musicians went into effect today, which presents many legal problems for the company's AI algorithm moving forward.
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Today, Facebook's newest Terms of Service for musicians went into effect, now speaking directly to musicians and how they use Facebook Live for broadcasting and content curation.
If you haven't read the new addition, you can read it below:
“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).
The Terms go on to explain the various scenarios that help clarify these new changes, but of course, we are left with many more questions that will most likely end up being litigated in a courtroom.
While noble in its attempt to valiantly defend the intellectual property of content creators and artists, Facebook has once again impulsively made a move where its algorithm will actually harm the users it is trying to protect.
For years, Facebook's CEO Mark Zuckerberg has faced heavy scrutiny over the platform's algorithm, specifically when it comes to minimizing and regulating abusive and hateful conduct. Just last week, The Verge released a 7,000 word expose on Facebook, with a half-hour of leaked private audio of Zuckerberg addressing the ways Facebook has actually helped feed the violence we've seen around the country. The point being is even Facebook knows its algorithm is complete and utter shit. But it doesn't care.
Well, with the new terms of service now in effect, it better. Typically, Facebook's algorithm controls the ordering and presentation of posts, so users only see what's most important to them. Now, it seems to target and specifically discriminate against those musicians who have had to adapt to a COVID-19 quarantine, where live performances and concerts are no longer feasible. With events and marketing taking a heavy hit, artists were forced to find new ways to push out their content to as wide of an audience as possible.
Facebook Live and Instagram Live.
Back in April, Facebook announced that it intended to allow artists to charge for entry into their concert live streams, among other changes. However, what happens when artists like deejays and other content curators, get flagged and have their content restricted because their content looks as if it's infringing upon previously copyrighted work?
EDM fans, let's use household names like 3LAU, Gareth Emery, Hardwell, etc. All these electronic deejay's in addition to their original content, also take previously copyrighted work (with permission) and add their own sound/mix to it, transforming it into something entirely new. This is common to the industry.
But to Facebook's ever-so "sophisticated" algorithm, it's just a black-and-white infringement scenario. See the problem? Oh and now discriminated against an entire segment of musicians who have to be super careful putting out content that could get taken down.
Balancing Intellectual Property Rights with Equal Protection
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).
Under the Fourteenth Amendment to the U.S. Constitution, the Equal Protection Clause requires each state to provide equal protection under the law to all people, including all non-citizens, within its jurisdiction. Now, before you go and say Facebook isn't considered a "state" so the EP clause doesn't apply, yes, this is true.
But. Don't we have a global communications platform that not only our state leaders and regulatory agencies use? Doesn't this same platform provide a mechanism for its users to vote in the U.S. election? Isn't there enough "involvement" by Facebook, that arguably, it could be considered a state actor for purposes of falling under the requirements of the 14th Amendment? I would argue yes.
If that argument were to fail, I would then put on the additional argument that if a court chooses to uphold any future lawsuit involving the enforceability of these new Terms, that the State through its judicial arm, could be acting by and through Facebook as a conduit. Enough to be deemed state activity.
DJ's impacted here, 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 problem is the A.I. just isn't sophisticated enough yet to truly hold users accountable for infringing, abusing, harassing, and other abusive forms of behavior. That's evident and apparent on a daily basis. No? Just look at the shit storm following arguably the country's most embarrassing U.S. Presidential Debate at Case Western University earlier this week.
The algorithm needs to be able to distinguish between permissible content that does in fact build upon properly licensed audio, such as the works that DJs would put out.
It's Time We Update Our IP Laws
The second issue involves our own U.S. copyright law, housed under the Progress Clause (or Intellectual Property Clause as its 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.”
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. Now, in an age where A.I., VR, and blockchain technologies exist, it's time those laws are re-written and re-applied to today's digital works of creation. This includes Facebook Live and Instagram Live.
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.
You can't have both the overall umbrella protection of copyrighted work while simultaneously allowing DJs and other artists who use that same work to add/transform their sound.
What this global pandemic has demonstrated, quite literally, is how infant Facebook still is when it comes to protecting users and ensuring it is providing a safe and profitable platform for both the average consumer and corporate enterprise.
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?
Honestly, who knows? One thing is for certain and that's artists now need to be especially careful with using copyrighted works and need to work even harder to push their sound out to their audience without getting their content taken down.
And Facebook needs to seriously reconsider the skeleton that defines its algorithm.
Published at DZone with permission of Andrew Rossow. See the original article here.
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