allegedly with Bo and Ryan | Season 2 Episode 11
Allegedly… with Bo and Ryan Podcast S2E11| Transcript
Ryan: [00:00:00] Welcome to Allegedly with Bo and Ryan, the only entertainment and law podcast that brings you the truth, the whole truth and nothing but the truth.
Bo: [00:00:09] Allegedly. I’m Bo Bowen.
Ryan: [00:00:11] And I’m Ryan Schmidt.
Bo: [00:00:13] You’re listening to Allegedly with Bo and Ryan. We’re coming to you from our law offices in beautiful, historic Savannah, Georgia, where we’ll be chatting about pop culture, hot legal topics in the news, and doing our best to change the way people think about the law and lawyers.
Ryan: [00:00:29] But first, a little about us. Bo is so knowledgeable that Google searches him.
Bo: [00:00:35] And Ryan is a lover, not a fighter, but he’s also a fighter. So don’t get any ideas. Together, we’re the only corporate and entertainment lawyers in the free world who have never lost a single case … Allegedly. Hello, hello and welcome back to another episode of Allegedly with Bo and Ryan, the podcast where law meets entertainment. As always, I’m Bo.
Ryan: [00:01:03] And I’m Ryan. We’re entertainment lawyers dishing out some tips and tricks so you can avoid getting into hot water like some of the unlucky folks we discuss on the show.
Bo: [00:01:12] Well, we have an absolutely juicy case to talk about today, Ryan. Now, do you remember a social media company called Twitter?
Ryan: [00:01:24] Of course,
Bo: [00:01:25] This was the platform that was all the rage for its amazing 140 character messages.
Ryan: [00:01:35] Yes. Twitter, as you know, created in 2006, quickly rose to prominence as the go to for quick blog like updates. And I’m pretty sure that I still have my tweet posted to the top of my profile: “Just woke up. Coffee, please.”
Bo: [00:01:52] In fairness, never actually been an early bird there, Ryan. I mean, remember that one day that you got to the office before me? Me neither.
Ryan: [00:02:02] Ouch.
Bo: [00:02:04] So. But, you know, obviously I’m joking. Of course, everyone knows what Twitter is. But, you know, at one time it was easily one of the most popular social media platforms on the planet. It’s been tarnished a little bit lately. It’s seen its standing maybe devolving just a bit. But, you know, Twitter’s rise at the time was so meteoric that if you remember, Barack Obama actually used Twitter to declare his 2012 US Presidential Victory.
Ryan: [00:02:36] Wow.
Bo: [00:02:37] I mean, that’s that’s a digital footprint right there.
Ryan: [00:02:40] Oh, for sure. But Twitter’s journey hasn’t been all ups and downs. You know, they started allowing videos actually on their platform in 2015. And arguably for what we’re talking about today, that was really the point when they should have considered securing a music license.
Bo: [00:02:57] Well, then came 2022, the reign of Elon Musk, who, as we all know, has a what’s the best way to say it, a unique and particular view of copyright law, Ryan.
Ryan: [00:03:14] Oh, for sure. I mean, Musk is our notorious techno tycoon. He once dubbed the Digital Millennium Copyright, or the DMCA, as a, “plague on humanity.” So he isn’t exactly a fan of the protections that it provides to online platforms.
Bo: [00:03:33] I mean, you’re right. And it’s kind of quite an irony, though, that under his leadership, Twitter didn’t get a public performance license, which would have allowed the use of copyrighted music. Pretty much every other platform in existence has done that. I mean, Instagram, TikTok, Snapchat instead, Twitter has elected to rely solely on the DMCA’s takedown notice system, for sure.
Ryan: [00:04:03] And that’s what we’re talking about today. Because of that, they’re being sued for a whopping $250 million by the National Music Publishers Association or the NMPA. Twitter allegedly ignored countless takedown notices and intentionally allowed infringement to occur on its platform.
Bo: [00:04:22] Well, Twitter apparently was notified by the NMPA of over 300,000 infringing tweets. And instead of doing what they were supposed to do and immediately then taking it down, they just would wait weeks or sometimes months before removing posts, and sometimes didn’t remove them at all.
Ryan: [00:04:47] And here’s the catch, Bo: without the DMCA’s liability shield, Twitter would be liable for every single infringement, like they were the person who actually stole that copyrighted music. So hence. That colossal $250 million to the NMPA is asking for. That’s a $150,000 for each willful infringement work.
Bo: [00:05:09] And so what, pray tell, was Twitter’s response.
Ryan: [00:05:14] Oh, boy.
Bo: [00:05:15] Well, as you can imagine, Elon Musk, you know, his response was was very well reasoned, mature, intelligent. Variety magazine reports that they received a poop emoji from Twitter’s press account when they asked for a comment. So, I guess that kind of sums up Twitter’s view on the matter.
Ryan: [00:05:40] How eloquent. I mean, now to give our listeners perspective, we’ve talked about this before, but Spotify pays between 0.003 – 0.005 cents per stream, and that’s partially ad supported, partially subscription supported. Apple, which is all subscription based dishes out more than double that, it’s 0.01 cents per stream. Tiktok pays 3 cents per each new video where your song is played. And Twitter: zero.
Bo: [00:06:13] That sounds right. Well, before we get too deep in the details here, you know, let’s let’s just address Elon Musk for a second here. Let’s chat about him because he is kind of an interesting fellow. As you know, Ryan, I drive a Tesla, a Tesla, and I love it, honestly. I mean, it is a really fun car to drive. But I got to say, it’s starting to feel kind of ruined for me because apparently Elon Musk just got up one day and thought, you know what? I’m just going to lose my damn mind today.
Ryan: [00:06:50] You’re so right. I mean, it wasn’t long ago that Elon Musk’s public persona was that of an engineering and managerial genius. He built Tesla into the world’s leading EV company. He created a profitable market for this entirely new technology, and that’s the future of transportation. He’s also stripped down the cost of spaceflight and turned SpaceX into a low cost bid winner for government rocket launching. And not long ago, a lot of people truly saw him as almost a savior of global warming and even humanity through his plan to transport civilian civilizations to unpolluted Mars.
Bo: [00:07:32] And then he ruined it.
Ryan: [00:07:35] Oh, for sure.
Bo: [00:07:36] I mean, now it’s like I’m embarrassed to tell people that I drive a Tesla. We’ve talked about the disastrous ways that he handled the purchase of Twitter. We went through that extensively in another podcast. But, you know, that’s easily got to be one of the most bungled transactions of our lifetime. But then he started tweeting himself and oof.
Ryan: [00:08:05] They’re not all gems.
Bo: [00:08:07] Over and over again, each time he just seemed more and more determined to make himself look like a moronic asshole.
Ryan: [00:08:18] So here’s a game that just came to my mind. Why don’t we each list some of our favorite Elon Musk tweets? Okay, I will be happy to start. I remember that at the very peak of coronavirus, which has killed over 7 million people worldwide, he tweeted, quote, The Corona virus pandemic is dumb, unquote.
Bo: [00:08:43] That literally makes me want to face palm. And then there was there was this classic you know, I read the other day and we were talking about it, I think he’s got ten kids, right?
Ryan: [00:08:55] Yeah.
Bo: [00:08:56] And so you remember that when the news broke that his trans daughter was requesting a name change in court? I guess just, you know, didn’t even want to share the same last name as him and be associated with him. His really sensitive tweet at the time was “pronouns suck.”
Ryan: [00:09:17] What a piece of shit. Well, it’s no secret that he’s not really known for his sharp sense of humor or even his sensitivity. Here’s a good example of that we’ve talked about before that women in IT and in tech face rampant sexism.
Bo: [00:09:33] That’s terrible.
Ryan: [00:09:34] So Elon decided it was a good idea to try to make a tits joke. He wrote, “I’m thinking about starting a new university. It’s going to be Texas Institute of Technology and Science.
Bo: [00:09:49] T-I-T-S.
Ryan: [00:09:49] He’s like a toddler with the way that he makes up these jokes. Even the names of the Tesla models he spells out sexy. It’s a. Model S, model three, model X, model Y, and he thinks he’s like, so funny.
Bo: [00:10:05] And not exactly Chris Rock, is he? No. What a douche. I mean, let’s not forget the time that–this was a worldwide story–that group of young boys, I think it was … I can’t remember how many it was. It was a large group. And their coach.
Ryan: [00:10:24] A soccer team. Right?
Bo: [00:10:24] Yeah, that soccer team. They were trapped in a cave in Thailand and they were trapped for over two weeks. I think it was 17 days. And then it was just a miracle they ended up getting rescued. They all survived. And this diver named Vernon Unsworth played this crucial role in saving them. But Musk had gotten all butt hurt because he had offered to send like a submarine over there to help. And they were like, “yeah, that’s okay. We don’t really need that.” So he went on Twitter and called the guy who saved these children a pedophile, you know, completely baselessly just to be a dick.
Ryan: [00:11:10] That’s so horrifying. I mean, to me, though, there really is nothing worse than when he just tries to be funny. For example, he once tweeted out this gem, “I put the art in fart.”
Bo: [00:11:26] Nope. That’s so not funny. It legitimately pisses me off. I mean, do you remember when he tried to justify the fact that he has ten kids by tweeting that the earth is on a brink of a population collapse? I mean, there are 8 billion people on earth.
Ryan: [00:11:52] It’s not just the dumb things he says. It’s that the dumb things he says can have real world consequences. He once tweeted out on April Fools Day that Tesla was filing for bankruptcy. Okay. Which I’m sure he thought would be a funny joke. But you know who didn’t think it was a funny joke? The market. Okay. Tesla shares immediately nosedived, costing people real money because he thought that it’d be a funny prank.
Bo: [00:12:21] I honestly, I can’t. I can’t even do this anymore. I mean, we haven’t even scratched the surface of the dumbest shit he said. I mean, he’s embraced conspiracy theories, supported Kanye West for president. You know, my man Elon needs to pull himself together. I mean, it’s very rare, I really can’t think of another example of somebody that, you know, I really admired and thought, you know, I kind of put him in the same category as like Steve Jobs and, you know, Bill Gates. It’s, you know, people —
Ryan: [00:12:56] Wow.
Bo: [00:12:56] — they’re really intelligent and innovators and, you know, really admired what they had have accomplished and done to just immediately open their mouth and ruin it.
Ryan: [00:13:08] Oh, for sure.
Bo: [00:13:09] I mean, it’s so bad. But, you know, so based upon all that, I guess it’s not a huge surprise to see him now directly in the crosshairs of the NMPA. So before we talk about the specifics of that case, though, I mean, there’s these terms can be kind of confusing, especially if you’re not an insider. Why don’t you take a minute–Ryan, because I know, this is your world–explain a little bit of the kind of the jargon that gets thrown around in these cases like like DMCA takedown notices and safe harbors. Can you can you break that down a little bit for us?
Ryan: [00:13:49] Yeah, absolutely. So let’s start with the DMCA. That’s the Digital Millennium Copyright Act. It’s kind of like the superhero cape for online platforms.
Bo: [00:13:59] Superhero Cape really? Okay, Brother Ryan, I’ll allow it. How is it a superhero cape?
Ryan: [00:14:06] Okay, so you see, the DMCA shields these platforms from liability when their users post copyrighted content without the copyright owner’s permission. It’s as if they’re invisible to the copyright infringement’s ray guns.
Bo: [00:14:21] Oh, so exactly like the shield Captain America uses to ward off attacks [laughter].
Ryan: [00:14:29] I mean, yeah.
Bo: [00:14:30] Okay. But how how does it work in reality?
Ryan: [00:14:34] Okay, so the DMCA came up with this brilliant idea when they saw that the future of media was digital, it was online. And they came up with this idea of the takedown notice. It’s essentially a copyright owner’s way of saying, Hey, people are sharing my stuff on your site without permission, and I want you to remove it now.
Bo: [00:14:56] So basically a take down notice would be a cease and desist in the online world.
Ryan: [00:15:02] Exactly. Now, here’s where the safe harbor comes in. If a platform gets a takedown notice and they promptly remove the infringing content, then they can stay within the DMCA safe harbor, and [therefore] be shielded from infringement liability.
Bo: [00:15:18] So so basically a safety net. I mean, if they slip and let some unauthorized content onto their platform, they still get to stay on the trapeze basically as long as they address it immediately.
Ryan: [00:15:34] Yeah, you got it. I mean, it’s all about quick action and compliance. If the platforms play by these rules, they can continue their high wire act without fear of any lawsuit.
Bo: [00:15:44] I mean, that obviously makes sense in reality. In the real world, I don’t know any other way you could do it. I mean, if, you know you own YouTube and some knucklehead posts an infringing video, that’s not really your fault. It’s not YouTube’s fault. They can’t be held liable for something, a third party posts, as long as they agree to immediately take it down as soon as they receive notice of it.
Ryan: [00:16:12] Right.
Bo: [00:16:13] That makes perfect sense. That’s fair. But I guess with this lawsuit, what the NMPA is saying is that Twitter has been completely ignoring this, ignoring the safety net and saying, you know what, we’re just going to walk the tightrope without the net underneath.
Ryan: [00:16:31] That’s a great way to put it.
Bo: [00:16:32] I mean, so you’re painting this picture, Ryan, where where platforms like Instagram, TikTok, Snapchat, all these others, they basically have the golden ticket. So they’ve got the public performance license. They’re sailing through the chocolate factory. No Oompa-Loompas in sight. And but then they also, on top of that, have this takedown notice system. So why do you need both? I mean, that seems like basically a belt and suspenders.
Ryan: [00:17:06] Oh, it absolutely is. It’s a lot like that. I mean, a public performance license is like having the keys to the castle. It allows the platforms to use the copyrighted music without constantly looking over their shoulders and having to rely on that shield.
Bo: [00:17:20] But if that’s the case, why would they need the DMCA takedown notice at all if they have the license? I mean, it sounds like that’s basically they’re already covered. I mean, why need that extra set of keys?
Ryan: [00:17:36] Well, remember, the Internet is a vast place and there’s a ton of content out there. Even with this public performance license, there might be some copyrighted material that just slips through the cracks, you know, something that isn’t covered by that license.
Bo: [00:17:51] So it’s basically like you talked about, it’s having that safety net under the tight rope. I mean, even if you’re an expert, you know, Cirque du Soleil tightrope walker, you’re you still have that safety net. So where we’re talking about with Twitter now is they say ‘we’re foregoing the license. We’re not going to have that license at all. So we’re just going to basically rely on the net underneath the takedown notice,’ which they then are ignoring anyway.
Ryan: [00:18:21] Absolutely. I mean, the DMCA takedown system is that safety net. And if a copyright owner spots their content being used without proper rights, then they can issue a takedown notice. Usually it has to be a very easy online form that all these websites will have and the platform can remove that content, thereby staying within that safe harbor and avoiding personal liability.
Bo: [00:18:45] Well, the way you explain it, whenever I hear about one of these lawsuits and, you know, makes national news and the plaintiff is seeking this huge sum of money like this, it’s easy to assume–just hearing the numbers–that it’s someone being very overly litigious and opportunistic and or greedy. But it’s my understanding particularly, you know, thinking about it as I’m listening to you explain it. I mean, it almost seems like they’re more kind of like the big brother on the playground looking out for their younger sibling, the one, you know, somebody that’s not going to let someone else come and eat their younger sibling’s lunch without paying for it.
Ryan: [00:19:30] Exactly. And like, think about it this way. There’s some real intentionality behind the number that they’re being that’s being sought. They didn’t just pick some giant number and go for it like some, you know, plaintiffs lawyers do. Right. They looked at how many tracks were infringing on Twitter and then they applied the statutory damages under the Copyright Act to that amount of infringements to get that number.
Bo: [00:19:56] And so they’re not going out there trying to enrich themselves. They really are attempting to protect the artists, the ones who originally copyrighted this music or content, whatever it is, who now are seeing their work being exploited by someone else who’s refusing to pay for it.
Ryan: [00:20:16] Oh for sure. And they’ve got a great track record of doing this for other online service providers. You know, when players of the video game Roblox were jamming out to Ariana Grande’s “Thank U, Next” in their 3D created Wonder World, the NMPA was like, ‘You didn’t ask Ariana if you could use her song and you’re not paying her either.’
Bo: [00:20:40] [I can] totally picture that Ariana just sitting there like, ‘Wait, when did I perform at a Roblox concert?’ So the NMPA jumps in. They sued Roblox for I think it was 200 million and ensured Ariana–just like they did many other artists and songwriters whose music was being shared in the video game–that they got their fair share of what they should have been owed under the law.
Ryan: [00:21:10] Yeah, absolutely. And they did the same exact thing with Peloton. So imagine you’re sweating it out on your fancy, expensive bike with Britney’s “Work Bitch” playing in the background. Okay? And you’re pushing it to your limits when suddenly the NMPA comes in like a swooping hawk.
Bo: [00:21:27] And I could. I could see it, my friend. Before you know it, Peloton is dishing out this massive settlement and signing on the dotted line of a shiny new licensing deal.
Ryan: [00:21:43] And imagine how shitty a Peloton exercise class would be without the music. That’d be boring as hell.
Bo: [00:21:53] I mean, that’d be like, you know, just riding a bike, you know, like a caveman.
Ryan: [00:22:00] I can’t even imagine. And then you got this platform called Genius–where fans dissect song lyrics like they’re some part of a high school English assignment–also had a run in with the NMPA. They were like, ‘Uh, no, you can’t just post Beyonce’s lyrics without her say so.’
Bo: [00:22:18] God, can you just imagine? Can’t you just picture Beyonce like wondering, ‘why are my lyrics being analyzed more intensely than Shakespeare’s sonnets?’ But no worries. Once again, NMPA swoops in yet again, and the genius minds at genius quickly reach a settlement.
Ryan: [00:22:42] And of course, we can’t forget about Twitch. I mean, all those video gamers streaming while head bopping to Billie Eilish’s “bad guy.” And here comes again the NMPA saying, ‘Hold your controllers.’ Did Billie get her cut?
Bo: [00:22:59] You can almost hear [it]. It writes itself. You can hear them saying: that’s a bad guy move, right there. And of course, Twitch got caught in the crossfire once again, ends up signing a licensing deal. Everybody lives happily ever after.
Ryan: [00:23:13] So in essence, the NMPA is not some money grabbing ogre. They’re just the custodians of fairness in the music playground, ensuring that our beloved artists and songwriters get the lunch money they deserve.
Bo: [00:23:27] Well, that obviously brings us back to Twitter. Twitter is basically holding up all of their fingers and saying, guess which one? So the NMPA is like, ‘nope, that’s not going to happen.’ I mean, I almost feel like we need that music from “The Good, The Bad and The Ugly” to be playing, you know? I mean, it’s shootout at the OK Corral time, and NMPA is like ‘It’s high noon, Twitter. Time to pay up.’
Ryan: [00:23:59] I mean the real question is will Musks Twitter follow suit with all these other cases that come before it that have settled out, or are we in for a landmark court decision and big battle?
Bo: [00:24:10] Well, whatever the outcome, I think this case does highlight the necessity for online platforms to absolutely take licensing and copyright laws very seriously.
Ryan: [00:24:26] Absolutely. And this just isn’t a wake up call for Twitter, but for all platform creators and users to respect and understand copyright law.
Bo: [00:24:35] I think you’re right. I mean, we’re obviously talking about the big players, Twitter, the NMPA. But what about the little guys, You know, the songwriters, the artists, the folks who make the music we all love? How do they make sure they’re getting their fair share of the pie when their tunes are spinning on these online platforms?
Ryan: [00:24:59] It’s a great question Bo. It’s a question that we answer all the time. It’s very important. First, Let me just say that it’s a daunting task keeping up with the ever changing landscape of digital music rights. But thankfully, there are a few steps that artists and songwriters can take to protect their work and ensure that they’re compensated fairly.
Bo: [00:25:18] [Laughter]. When I hear Ryan say there are a few steps, because I immediately think to myself: we are in for one of the patented Ryan checklists. So all right, folks, you might want to jot these down.
Ryan: [00:25:31] Okay, here we go. First. It is crucial. I can’t emphasize this enough to work with a performance rights organization, or PRO, these organizations ASCAP, BMI, SEASAC, for instance, collect and distribute royalties for the public performance of musical works. So if your song is performed publicly, the pro makes sure that you get paid.
Bo: [00:25:56] And they’re constantly scanning for the music as well. Right? I mean, basically it’s like having a watch dog out there, you know, looking for your work.
Ryan: [00:26:04] Absolutely. And these shouldn’t these people shouldn’t be feared. They are nonprofits that only exist to collect songwriter royalties. They’re not out to screw you. They get a very low cut of what they actually bring in. And every single legitimate songwriter and artist out there uses and relies on PROs in every single country in the world. But then, you know, you said this is a checklist, so here’s here’s number two. Okay. Artists should also consider signing up with a mechanical rights agency like Harry Fox or Music Reports. So these handle licenses for the reproduction and distribution of musical compositions, a crucial part when your music is covered and streamed online.
Bo: [00:26:45] All right. So one would be registered with the PRO and two, register with a mechanical rights agency.
Ryan: [00:26:53] Yeah, absolutely. And the mechanical rights agency, because there’s a compulsory mechanical license under the Copyright Act, that means that any time somebody sells one of your songs or streams, one of your songs, you’re entitled to 9.1 cents for each stream. That’s way better than like what Spotify would pay. I mean, there’s some real, real money that can be had for that.
Bo: [00:27:14] Yeah, no kidding. I mean, Spotify was at the .001 cents, something like that.
Ryan: [00:27:20] Yeah, something like it’s crazy. So yeah, those are some really, really great rights when somebody covers your songs. But there’s also Sound Exchange. They’re a non-profit organization that collects and distributes digital performance royalties for featured artists and copyright owners. Not the songwriters, but the ones who own the master recordings. So when your music is streamed on live radio type online platforms like Pandora or SiriusXM Sound Exchange is the one who makes sure that you get paid.
Bo: [00:27:50] So, All right, cool. So another ally for the artists.
Ryan: [00:27:53] Exactly. And then we’ve got a few more. You got songtrust. The thing to keep in mind about PROs, and like said, ASCAP and BMI are the big ones in America, but each country has their own PROs. And these these pros are only going to be collecting within the boundaries of that of that country. That’s where Songtrust comes in. It’s a global royalty solution that enables songwriters to collect publishing royalties worldwide. They collect for over 215 countries. That’s that’s a lot of countries and a lot of royalties for sure. And then you can’t forget about just the value of self-distribution like Distrokid, TuneCore and others. These guys take on the task of getting your music on major digital platforms like Spotify, Apple Music, Amazon, you name it. So they help you collect your sales and streaming royalties from these platforms and offer a wide range of services for independent artists.
Bo: [00:28:52] So basically they got to be like the middleman between the artists and these platforms.
Ryan: [00:28:57] Yeah, absolutely. That’s correct. And the beauty of these distributors is that they allow artists to maintain ownership of their music while still getting getting it out of the hands of these major platforms. You know, these that’s crucial for independent artists who want to keep control of their work.
Bo: [00:29:12] Well, that’s a great point, Ryan, because I know people contact you all the time. And many times when you start looking into deals they’ve made, it might already be too late because they did not follow these steps that you’re suggesting. So, well, it seems like the key message here is that there are several resources out there that are looking out for artists and songwriters to help them, not just protect their work, but also get paid for it. But you definitely have to be proactive and seek them out and register with them in order to take advantage of that.
Ryan: [00:29:51] Absolutely. And when in doubt, you can always give us a call. We love hearing and working with musicians.
Bo: [00:29:57] And you basically could then just talk with them and kind of walk them through that list. And to the extent there’s anything they’re unsure about, they don’t understand. You’d be able to walk them through it and help them get that registration complete.
Ryan: [00:30:10] Happy to do that.
Bo: [00:30:11] Well, I think that is all we have for today, folks. We will definitely keep an eye on this Twitter litigation and continue to not only keep everyone updated, but continue to make fun of Elon Musk, I’m sure.
Ryan: [00:30:26] For sure.
Bo: [00:30:26] So for more information on how we can help, you, definitely go to TheBowenLaw Group.com and make sure you tune in the next time we’ll bring you the latest and greatest from the exciting world of entertainment law.
Ryan: [00:30:43] And remember, keep it legal, keep it smart, and stay tuned to Allegedly with Bo and Ryan. See you next time.
