Creator Economy Law – Issue #20

Legal resources for podcasts, Meta’s scared of Apple (for multiple reasons), TikTok v Kia, Google’s pre-bunking efforts, AI developments, and more!

This is Creator Economy Law, a newsletter dedicated to exploring and analyzing the legal issues surrounding the creator economy, creators, and internet platforms. If you enjoy what you’re reading, share with friends, and invite them to subscribe using the button above and share using #CreatorEconomyLaw.

We’re doing Creator Economy Law… live!

Don’t we look fabulous!

What’s a better way to earn CLE credit than while also hanging out with some of the coolest IP, media, and technology attorneys and legal professionals in the world? Don’t miss the American Bar Association’s Annual IP Conference in Washington, D.C., April 12th – 14th. There is a lot more programming in addition to the Creator Economy Law panel. Check it out and register today!

Did you see it? Yes, the Super Bowl and that incredible Apple Music Halftime Show from Rihanna and baby number 2. But also, the first-ever creator brand to have a commercial during the Super Bowl! Prime is coming to us all courtesy of Logan Paul and KSI. Been in the dark about it? You can ask a kid near you, or also read this article to catch up.

If you blinked, you may not have seen Jimmy, but he was in a commercial, too!

Here’s what’s been happening in the world of Creator Economy Law.

What You Should Know

What’s the end game for Microsoft and Google with AI-powered search?

The internet has been having a field day with Microsoft’s Bing and its newly added AI-powered chatbot / search function. Rushed product launch for 500, Alex…

If the content creators operating within the ad tech and advertising ecosystem are disrupted, what does that mean long-term for everyone? 🤨

“If a website publisher loses visitors, they potentially lose advertising revenue,” I shared with Thomas Maxwell for Insider Business.

“If that advertising revenue is then redirected to the company powering the search engine, which is also the same company that scraped the information from the website publisher in the first place, I don’t see how the search-engine company stands a chance at arguing against any downstream harm from their actions.”

Tom’s article highlights some additional important points:

❓Do search users want more than just facts? Are they willing to scroll more for insights or nuanced takes on a topic?

❓When will regulators step in and guide the use of AI-powered technologies? The EU is already pushing forward with the AI Act, and the DMA and DSA each play an important role here, too.

❓How will stakeholders react? Not just users, but the content publishers across news, media, and entertainment. How about all other players in the ad tech ecosystem?

What do you think? Would love to hear in the comments!

GitHub Supports Yout in YouTube Ripper Appeal against RIAA

GitHub filed a supportive legal brief (amicus brief) in the Yout, LLC v RIAA appeal over the YouTube video download tool. I’d argue the YouTube TOS matter in this situation…

As GitHub explains, the district court noted that “YouTube’s decision not to include a ‘download’ option in its own interface constitutes an ‘access control’ that prohibits anyone else from adding that additional means of experiencing the same publicly available content.” (quote is a summary by GitHub, not a quote from the lower court)

GitHub argues that “By interpreting the DMCA in a way that conflates measures controlling access to a work with measures controlling use of a work that is already publicly accessible, the district court’s ruling threatens to imperil the software developers who create those tools, ensnaring legitimate software within the DMCA’s reach and chilling technological innovation.”

GitHub notes: “YouTube makes its video and audio content freely available to everyone over the internet.” And also argues, “A software tool does not violate the DMCA’s anti-circumvention provision simply because it allows users to experience content differently once the publisher makes its content available to the public.”

YouTube Terms of Service

This is true to the extent “freely” available is interpreted through the consumption mechanisms YouTube permits, as they clearly note in the YouTube Terms of Use: “You may access and use the Service as made available to you […]”

🚨This doesn’t mean that just because information is made publicly available on the web, that it is suddenly fair game.

GitHub seems to also overlook the express prohibitions on certain conduct in connection with the YouTube platform: “You are not allowed to: […] circumvent, disable, fraudulently engage with, or otherwise interfere with any part of the Service (or attempt to do any of these things), including security-related features or features that (a) prevent or restrict the copying or other use of Content or (b) limit the use of the Service or Content[.]”

Maybe GitHub does have a point because the words “access and use” are used together in the opening sentence of the “Permissions and Restrictions” section of the YouTube ToS, but in the immediately following list of prohibited activities, YouTube’s drafting only uses the word ‘use’ as follows: “The following restrictions apply to your use of the Service.”

But, I’d point out that the first bullet point of prohibited activities includes the wording that prohibits: “access, reproduce, download, distribute, transmit, broadcast, display, sell, license, alter, modify or otherwise use any part of the Service or any Content except: (a) as expressly authorized by the Service; or (b) with prior written permission from YouTube and, if applicable, the respective rights holders[.]” Note the use of the word “access” here.

Do the technical measures used to ensure the underlying content on a platform is consumed in the intended manner, and as expressly detailed in a Terms of Service, impact the analysis of how both works are meant to be accessed and also experienced?

AI Guidance from the U.S. Copyright Office… Coming Soon?

Kris Kashtanova shared an update on Twitter (see photo above) about their ongoing work with their legal counsel and the U.S. Copyright Office to avoid cancellation of the registration for the graphic novel “Zaraya of the Dawn” which is a mix of generative art and human creation.

Interestingly, Kris shared that the USCO is planning to release guidance on “AI-assisted” art. This will be HUGE, if accurate, and could provide some helpful insight into how creators can properly use AI tools, and how the USCO will expect such use to be disclosed when seeking a registration. Rumor has it the U.S. Supreme Court’s decision in the Warhol v. Goldsmith will play a role in the guidance made available by the USCO.

Attached I’ve also included my proposed “Creation-Generation Spectrum” that can be useful when examining the degree of human involvement in the creation of works that are either partially or entirely generative, or when creators use tools that aid in the creation process of a final work.

At which point along the spectrum does sufficient human authorship fall? 🤔

I would argue Kris’s situation is more nuanced:

👉 The artwork should not be copyrightable, since it doesn’t involve sufficient human authorship.

👉 However, the story, arrangement, and graphic novel as a whole should be copyrightable, apart from the generative art.

This also begs the question: How will anyone really know whether or not a work has been partially or entirely generated using AI? Scott Sholder shared a great article from MIT’s Technology Review that worth a read: “Why detecting AI-generated text is so difficult (and what to do about it)“.

What do you think? I’d love to hear your thoughts in the comments.

Bill Aims to Reduce Copyright Term Down to Two 28-Year Periods

new bill (re)introduced in the US House aims to reduce copyright protection down to 28 years, with an optional extension for 28 more years.

📜 What’s in the bill?

The bill seeks to override current language in the U.S. Copyright Act with the following, which throws back to the 1909 version of the Copyright Act:

Creation of an “original term” — “copyright in any work shall endure for 28 years from the date it was originally secured.”

Creation of a “renewal term” — “The holder of a copyright […] shall be entitled to a renewal and extension of the copyright in the applicable work for a further term of 28 years if the holder applies for that renewal and extension during the 1-year period before the expiration of the original term of the copyright under that paragraph.”

The new copyright terms would go into effect for any new works from May 1, 2023, and after.

But what about existing works? Those are left under the current copyright law terms, which are life of the author + 70 years for published works, or 95 years from publication (or 120 years from creation) for works-made-for-hire and anonymous/pseudonymous works, for works published after January 1, 1978. It also seeks to shorten the term of any licenses entered into for those pre-2023 works.

EXCEPT, if there’s a big business involved… then pre-May 2023 works would be subject to these new, shorter terms. But why…

❓What’s going on?

The Walt Disney Company. That’s what’s happening here. If you missed previous news reports, Disney and republicans have been in numerous disputes. Google it 🙃

Senator Hawley said in a May 2022 press release, “the age of Republican handouts to Big Business is over. Thanks to special copyright protections from Congress, woke corporations like Disney have earned billions while increasingly pandering to woke activists. It’s time to take away Disney’s special privileges and open up a new era of creativity and innovation.”

🗣️ Franklin Thoughts: This isn’t going to get far and seems to be for political theatrics. It’s likely in violation of both the Constitution (the Takings Clause for one), international treaties (like the Bern Convention), and potentially more.

“It would almost certainly put the United States in violation of the United States-Mexico-Canada Agreement (USMCA), which replaced NAFTA,” noted Aaron Moss in a comment to my original post. “The USMCA requires a copyright term of no less than the life of the author plus 70 years, or 75 years for corporate works.”

Also, why May? Copyright law has historically been applicable based on a calendar year starting January 1 through December 31. It’s really odd.

Read more on current copyright duration on the U.S. Copyright Office website.

Don't Miss

Meta is (and should be) scared of Apple. A newly leaked internal memo details how the impact of Apple’s changes to its App Store guidelines is far from over for Meta, plus the company’s fears over TikTok and connecting its brand with the next generation. Meta’s also reportedly exploring more job cuts while also delaying team budget setting.

At the end of the day, aren’t we all trying to figure out how to meaningfully connect with the next generation? Okay, maybe it’s just my parenting fears coming out as my kids are getting older.

Additionally, Bloomberg’s Mark Gurman reports that Apple is planning to unveil its mixed reality (XR) headset at its annual Worldwide Developer Conference (WWDC) in June. This is reportedly a delay from an originally planned announcement for April, but still is a potential rival to Meta’s Oculus Quest Pro and Quest 2 headsets.

Speaking of ads… Meta’s Pedro Pavón, Global Director of Ads and Monetization Privacy, published a blog post explaining two new ad transparency moves from the company: (1) updating the “Why am I seeing this ad?” tool, “providing more transparency about how your activity both on and off our technologies may inform the machine learning models we use to shape and deliver the ads you see.” and (2) “make it easier for people to find our ads controls, you will now be able to access Ads Preferences from additional pages in the “Why am I seeing this ad?” tool.”

What do you not want a court order to say? How about: “This case is an example of a wealthy client (Facebook) and its high-powered law firm (Gibson Dunn) using delay, misdirection, and frivolous arguments to make litigation unfairly difficult and expensive for their opponents.” 😬 Dennis Crouch of Patently-O shared Judge Chhabria’s sanctions opinion against Facebook, where the court hopes it “will create some incentive for Facebook and Gibson Dunn (and perhaps even others) to behave more honorably moving forward.” Download the opinion from the ongoing class action litigation stemming from the Cambridge Analytica scandal.

Source: Oversight Board

Meta’s Oversight Board announced it will start to review more cases, and in a faster manner, than before following changes to its Charter and Bylaws.  Kenji Yoshino, a constitutional law scholar from the United States, will also join its board.

Is live shopping dead? Instagram may think so following its latest move to end the live product tag feature on March 13, 2023. Luckily, there are still other options for creators.

Roblox reported strong Q4 earnings (up 2% YoY), with 2022 annual numbers including 56 million daily active users (up 23% YoY), 49.3 billion engagement hours (up 19% YoY). Wall Street was happy with the stock seeing a 25% boostafter the announcement.

YouTube‘s Creator Music is now available for all monetizing creators in the U.S! The platform’s been updating other creator-focused tools, too. Amanda Perelli reports that YouTube’s BrandConnect platform is transitioning from a white-glove experience to a self-service model. “What made BrandConnect stand out from other influencer agencies,” she writes, “was that the team took care of basically everything, and matched clients with deals directly via email.”

I also just received an email from YouTube announcing the roll-out of YouTube Kids profiles on smart TVs, streaming devices, and game consoles so parents and kids “will now be able to enter the safer, designed-for-kids YouTube Kids app through your child’s YouTube Kids profile. This change will be rolling out to families over the next few weeks.”

TikTok might be tossing more money at creators through a so-called Creator Fund 2.0. At the same time, TikTok users have forced Kia to issue a software update in response to the “Kia Challenge” where USB cables could be used to bypass security systems. The New York Times also reports that teens are showing signs of recovery from the “TikTok Tics.” Meanwhile, TikTok will have a week-long exclusive for their platform and users to use Snoop Dogg and Death Row Records music in their videos before rolling out to all streaming services later.

Twitter is becoming all Elon, all the time, following the CEO’s demand that the algorithm be changed to favor his tweets. However, will this remain in place if he finds his next CEO by the end of the year?

Also, you can also expect to see more cannabis ads now that the company is relaxing its Cannabis Ads policy. Maybe the company should focus its efforts elsewhere. Twitter’s allegedly running ads against hate speech amid reports of increased hate speech on the platform. Also, they’ve delayed the launch of their new API platform.

Google‘s expanding its efforts at educating and training users to recognize misinformation online, the AP reports. The process is known as “prebunking” or “attitudinal inoculation”.

In other Google news, the company launched a set of tools dubbed the Privacy Sandbox on Android, “an industry-wide initiative to raise the bar for user privacy and ensure continued access to free content and services. Building on our web efforts, we’re developing solutions for digital advertising that limit user data sharing and don’t rely on cross-app identifiers.”

Bad ads. Tiffany Hsu over at The New York Times published a deep dive into the terrible ads we’re starting to see more of across social networks. It seems to stem from a pullback by major marketers, which has opened the door to less desirable players. This likely will impact creators as the cost of the ads going down will also decrease the revenue seen by creators.

The USPTO wants your input on AI. The United States Patent and Trademark Office (USPTO) published a request for comment (RFC) seeking stakeholder input on the current state of AI technologies and inventorship issues that may arise in view of the advancement of such technologies, especially as AI plays a greater role in the innovation process (Hey there, Thaler!). The USPTO is pursuing three main avenues of engagement with stakeholders to inform its future efforts on inventorship and promoting AI-enabled innovation: (1) a series of stakeholder engagement sessions; (2)collaboration with academia through scholarly research; and (3) a request for written comments to the questions identified in this RFC. Comments, in general, and responses to the questions identified in section IV must be received by May 15, 2023 to ensure consideration.

eBay has acquired the AI-based marketplace compliance solutions provider 3PM Shield LLC. “It is a top priority to help ensure that eBay remains a safe and trusted environment for our global community of sellers and buyers, particularly to prevent counterfeits and unsafe or illegal products,” said Zhi Zhou, Chief Risk Officer at eBay. “3PM Shield has been a valued and effective external partner in helping eBay tackle these challenges and we look forward to unlocking additional capabilities as we bring their technologies in-house.”

  • Reddit is looking to make its IPO happen in the second half of 2023, according to The Information.
  • The Wall Street Journal‘s Paul Vieira highlights the concerns of Canadian creators if the legislation (which I’ve covered in previous newsletters) passes requiring that digital platforms from YouTube to TikTok to Netflix prioritize Canadian content and modify their algorithms.
  • Does Your Company Need a ChatGPT Policy? Probably.” by Debevoise & Plimpton‘s Data Blog
  • Spotify’s new activist investor is keeping a close eye on podcast spending” by Ariel Shapiro via The Verge’s Hot Pod
  • Songtradr will buy B2B music business company 7digital, pending shareholder approval, at a valuation of around $23.5 million.
  • Michael Nash, Executive Vice President and Chief Digital Officer at Universal Music Grouppublished a fantastic opinion piece in Music Business Worldwide that explores the ways in which artificial intelligence can be used ethically within the context of intellectual property law.
  • The Louisiana Board of Pardons & Committee on Parole has issued takedowns on 52 YouTube videos uploaded by the user MandooAccording to KPLC, the board live-streamed hearings but didn’t offer recordings on-demand afterward. Mandoo would upload videos of the hearings with commentary. Timothy Geigner over at TechDirt also has coverage.
  • Somehow I missed the copyright infringement lawsuits going on between Jamaican singer Shenseea and visual artist Stephanie Sarley over Instagram videos that involve the “sexualized handling of bisected fruit,” as broken down by Dancehall Mag. Read at your own risk!
  • Euractiv reports that “the European Commission issued on Wednesday (15 February) 11 referrals to the EU’s Court of Justice after six member states failed to transpose copyright measures into national law.” A requirement of the Copyright Directive.
  • Trademark law and a calendar app are causing headaches for video game developer Fntastic and their title The Day Before, according to Joshua Wolens over at PCGamer.
  • Snapchat Defeats Lawsuit Over User-to-User Harassment–Ziencik v. Snap” via Eric Goldman

Learn With Me

Legal Resources for Podcasts

Get the guest release. I’m all about sharing resources, so I thought I’d pass along this Podcast Guest Release Form Template that some EDUtubers shared in a community I’m part of. The template is from a site I’d never heard of before, but seems to offer some great advice for backing up and ensuring a podcast doesn’t go away over time.

Unsure of why you should use a guest release? Castos has a great blog post that breaks it down. Also, Attorney Gordon Firemark offers a release that can be downloaded for free.

Make sure you avoid future claims of joint authorship, too. The 1998 decision in Thomson v. Larson is helpful to review!

General guidance. I also recently came across Attorney Wesley Henderson’s 5 steps to protect your podcast over at the Smart Passive Income blog. They include:

  1. Seeking trademark protection;
  2. Establishing a business entity;
  3. Use a set of template contracts for routine business operations;
  4. Buy your podcast assets outright (if possible); and
  5. Ensure compliance with FTC disclosure guidelines.

2023 Exec Playbook from RockWater

Shout out to Brendan Gahan for sharing about the free 2023 Exec Playbook resource from Chris Erwin and the RockWater Roundup newsletter. The playbook has some fascinating business insights that anyone working in or around the creator economy should know about. RockWater is a financial and strategy advisory firm.

Izea released The State of Influencer Earnings 2023 Report and Hashtag Pay Me released Creator Pay Data. Meanwhile, Qustodio released its Annual Data Report for 2022. Shoutout to Jim Louderback for sharing these sources.

FTC Noncompete NPR Public Forum

The Federal Trade Commission is hosting a public forum on its Notice of Proposed Rulemaking to prohibit employers from imposing harmful noncompete restrictions on their workers. The online event will be held Thursday, February 16, 2023, from 12 noon to 3:00 p.m. ET. Read the press release for more.

Copyright Alliance’s CCB Event

The Copyright Alliance—in partnership with 15 Volunteer Lawyers for the Arts (VLA) organizations—hosted a webinar on the Copyright Claims Board (CCB), titled The Copyright Claims Board—What We Know About the CCB So Far. During the event, which drew more than 400 attendees, panelists took an in-depth look at how things are working with the CCB seven months after its launch by the U.S. Copyright Office. They have released a video of the panel, which can be viewed on YouTube.

Music Video of the Week

Growing up, I used to watch music videos on MTV or VH1… and I definitely got in trouble and grounded a few times along the way. I vividly remember the occasional blurred-out t-shirt or car emblem. I never knew why they did that at the time, and I remember wondering if it was because of some inappropriate content that couldn’t be aired on television.

One instance of censorship that really stood out, and was very noticeable, was during Mariah Carey’s “Fantasy” music video. At the 1:42 mark, there’s a background dancer that is wearing a FUBU t-shirt. It’s no longer blurred out, but you can only imagine how noticeable it was at the time.

Forrest Wickman wrote a great rundown for Slate of the potential legal issues and business concerns with using logos and brand elements without proper authorization or clearance.

Watch on YouTube or Apple Music.

Do you have a memory of a music video that contained blurred or censored marks? I’d love to hear about it in the comments!

Editor's Notes

Affiliate Links. As an Amazon Associate, I earn from qualifying purchases. I have noted above where links to products on Amazon may earn me a commission if you make a purchase. Thanks for supporting my work!

Not Legal Advice. This newsletter is published solely for educational and entertainment value. Nothing in this newsletter should be considered legal advice. If you need legal assistance or have specific questions, you should consult a licensed attorney in your jurisdiction. I am not your attorney. Do not share any information in the comments you should keep confidential.

Personal Opinions. The opinions and thoughts shared in this newsletter are my own, and not those of my employer or any of the third parties mentioned or linked to in this newsletter. No affiliation or endorsement is implied or otherwise intended with third parties that are referenced or linked.

Enjoying this? Share with someone you think might be interested! If this was forwarded to you, jump over to LinkedIn and subscribe for free.