Will Facebook’s New Music Terms of Service, Algorithm Upset Artists and Hurt Copyright Law?

Music attorney Andrew Rossow, Esq. and indie rapper Rami Matan Even-Esh aka Kosha Dillz investigate Facebook’s new music terms of service that arrive alongside the platform’s new “free” ticketed livestreams.

By: Rami Matan Even-Esh aka rapper Kosha Dillz and Andrew Rossow, Esq.

The music scene and copyright law are about to get lit! 

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).

“There is a possibility for a stream to now be shut down entirely.”

We spoke with indie hip-hop artist and rapper, Kosha Dillz about how these new changes impact artist’s like himself who have started to take to Facebook’s live-streaming for distribution and revenue. 

“For me, this change might be difficult,” he says. “While ‘freestyling’ live over classic beats, there is a possibility for a stream to now be shut down entirely.”

But for the rapper, who now splits his time between Israel and NYC, his international dream of bridging the gap between music and global prosperity is far from dead.

While this change isn’t exactly what he expected, he does admit that there is some good that can come from this. “It will force me to get unknown producers to send beats, which is good, and of course I will have to switch up my approach. I will have to always create different content, so this keeps me on my feet. So, in order to not have our page taken down, we need to now be more creative to make new styles of content that is original.”

The problem, according to Kosha, applies “more to DJ’s who are spinning other musician’s work to entertain their crowd.”

This brings in potential legal implications, according to internet attorney and Hollywood brand manager, Andrew Rossow, who, believes that intellectual property law is about to change, significantly. And perhaps for the better. 

Rossow, an adjunct cyberspace law professor at The University of Dayton in Ohio and a frequent cybersecurity consultant to major news outlets like ABC, FOX, Cheddar, and Bloomberg Law, emphasized the public policy interests associated with Facebook’s recent move.

“On one hand, the public policy interests associated with protecting intellectual property are always strong in today’s digital age,” Rossow admits, “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.”

Speaking directly to Facebook’s new Terms, the young attorney presented a more interesting question for practitioners:

“What happens when public policy interests of protecting said intellectual property is weighed against an algorithm that can’t possibly be that sophisticated enough to detect licensed, copyrighted material such as those you would find in an electronic DJ’s set?”

“These algorithms don’t care.”

And does he have a point? For those who are familiar with the electronic dance music scene, or EDM as it’s commonly referred to, it’s not uncommon for DJs to take previously copyrighted music tracks and “transform” it into something bigger, better, and more energizing. 

“These algorithms don’t care, even if those DJs have the proper licensing permissions from the original copyright holder. Hell, the algorithm can’t even detect malicious, nihilistic, or hateful behavior unless it involves politics. How can it now claim to protect IP, while keeping the music industry alive, especially during this COVID-19 pandemic?”

From an artist’s perspective, streams and broadcasts can’t be taken down. 

“We need to figure out ways to reproduce classic songs with acapellas on new beats, while adding new twists and collaborations with producers,” Dillz suggests. “While the chance is slim, we can’t afford to have a page shutdown. Let us use this as a good way to create music differently.”

Unfortunately, according to Rossow, we will have to see the implications this change brings at the expense of the artist. “With potential impact this change to Facebook’s Terms brings, there’s no question that this will see a courtroom, as there is clear discrimination here against a particular class of users. However, this is a necessary evil that will initially affect the artist, but for a greater purpose of changing legal precedent when addressing the modernization of the Copyright Act for today’s digital age. And it’s about damn time.”

Facebook shouldn’t necessarily be punished here, but it should be held accountable for what appears to be on its face a protective measure for artists, but inadvertently an impulsive move without much thought for the impacts on users. As we said, copyright law is about to get lit for artists!

Rami Even-Esh is a hip hop artist known as Kosha Dillz, who recently released his song W9, an independent blue-collar DIYanthem produced by Sad Pony , who is recently known for producing the #1 hit song Trollz by Tekashi 69 and Nicki Minaj.  Dillz’ album Nobody Cares Except Youcomes out on October 16.  and features Matisyahu, Gangsta Boo, and Fat Tony. He is a regular contributor at Hypebot on DIY music . 

Andrew Rossow is an internet attorney, brand manager, entrepreneur, and anti-bullying activist. He has written for Forbes and has been featured by Entrepreneur, Fast Company, and The Jewish Journal.