ARA Urges Antitrust Investigations of Big Tech to Include Creators’ Concerns
In light of the recently announced Department of Justice antitrust, FTC, and bipartisan House Judiciary Committee investigations of numerous big tech platforms, the Artist Rights Alliance has released the letter below detailing the threat dominant tech platforms pose against creative communities. Covering Google, Facebook, Twitter, and Amazon, the ARA letter highlights ways in which the platforms’ data collection practices, market domination, safe harbor protections, and numerous other abuses damage the creative ecosystem and make it harder for artists to make a living, connect with their fans, and have control over their own work.
The letter has been sent to the Chairman and Ranking Member of the House Judiciary Committee Subcommittee on Antitrust, Commercial and Administrative Law, the Department of Justice Antitrust division, and the FTC.
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July 31, 2019
Chairman David Cicilline
Ranking Member James Sensenbrenner
House Judiciary Committee Subcommittee on Antitrust, Commercial and Administrative Law
2138 Rayburn House Office Building
Washington, DC 20515
Dear Chairman Cicilline and Ranking Member Sensenbrenner,
As your Subcommittee evaluates the role of dominant tech platforms in our society, we urge you to take a careful look at the threat these giants pose to the creative arts and everyone who cares about them.
This an existential issue for working artists in diverse fields including music, video, photography, animation, and publishing — as well as a long-term threat to jobs, the economy, and the US balance of trade. According to one recent study, music alone creates $143 billion in overall economic value and supports 1.9 million American jobs. In 2017, copyright industries fueled by the creative arts accounted for 7% of the total US economy. And those cold figures don’t capture the even more vital human, cultural, and spiritual value artists in every field and discipline create.
The Artist Rights Alliance is an artist-run non-profit organization made up of musicians, performers, and songwriters. Music is a cornerstone of our culture. It is the voice of our artists and the soundtrack of our fans’ lives. In good times and bad, it tells the American story.
We have seen first-hand the damage wrought by the monopoly platforms using their market power to exploit outdated or misinterpreted public policy. If left unchecked, we fear they will squeeze the life out of American music and every other field of creativity and put the dream of earning a decent living out of reach for the next generation of creators. That is a matter of national concern.
We reject that future. Music, video, publishing, and the rest of the arts are too important to be left to the mercy of Silicon Valley’s toxic brand of “creative destruction” — a gauzy name used to justify rapacious monopolies run amok. A healthy creative ecosystem is part of the bedrock of our culture and something that cannot be outsourced, mass-produced, or ginned up on the cheap by some algorithm.
If we want America’s world-leading creative culture to survive and grow, we must tend our garden now. That means reining in tech abuses and modernizing and updating the law. In many cases, the problem is not companies acting illegally: it’s a flawed regime that practically encourages them to mistreat and exploit creators.
With respect to the music world, at the heart of this problem lies a simple, economic truth — companies like Google, Facebook, Twitter, and Amazon are not music businesses. They are advertising platforms and data machines. As our then-President, Melvin Gibbs, told the New York Times back in 2017, “None of these companies that are supposedly in the music business are actually in the music business. They are in the data-aggregation business. They’re in the ad-selling business. The value of music means nothing to them.”
When music or any of the arts are seen as disposable “content” competing for “users” in the “attention economy,” they will always be undervalued and misunderstood. Creators will be shortchanged by platforms that count clicks but curate nothing. And fans will be left unserved by an economy that treats their musical identity as nothing more than a data point that can be leveraged to feed them ads.
This system undervalues diversity and creativity and leaves less and less room for working artists to find and connect with new fans. It leaves too much of the economic value generated by music in the hands of digital platforms that aren’t incentivized to break new acts and help create something meaningful but simply want to generate the next round of clicks and micro-target as many ads as possible. Ultimately, it commodifies the relationship between artists and their fans. It’s economically unfair and culturally unsustainable.
It doesn’t have to be this way.
Creative artists appreciate and value what the technology platforms have created and believe we can work together in a healthy, cooperative way. All businesses and individuals working in the music ecosystem deserve fair pay and recognition for their contributions, including technology companies.
We actively embrace digital listening and distribution and will continue to work with new services and platforms to give fans the best ways to find and listen to music. We want a future in which innovation continues to thrive and fairness for all stakeholders and new competitors flourishes. That will require reining in anticompetitive monopolies to ensure both the next generation of artists and the next generation of innovators and services get a fair shake.
Fundamentally, every artist is his or her own small business and deserves a seat at the table of the modern creative economy. We seek your help leveling the playing field and updating the rules governing the dominant tech platforms to ensure our voices matter as much to business partners in the boardroom as they do to our fans in the concert hall.
Google and YouTube are among the largest listening platforms in the world, but they use this scale and their unique role as the “indispensable platform” to grossly underpay for music. According to recent estimates, YouTube pays creators between a third and a quarter of the astonishingly small amount Spotify pays per stream. And artists have no recourse or ability to demand a fairer wage: they are given virtually “take it or leave it” terms, a choice that isn’t viable when you are dealing with the largest streaming platform in the world. Simply having a license isn’t enough, especially when that license has been extracted at the point of a monopoly gun.
It’s similar to the problem journalists faced when they pressured Google to stop “scraping” large chunks of their stories into search results so users would just read the snippet on Google.com instead of clicking through to a news organization’s own website. Google responded by dropping outlets that refused to authorize large snippets from their search results and traffic to those sitescratered. Like journalists, artists have no meaningful way to say no to Google and YouTube and are trapped in a no-win game where they can’t afford to be off the platform but they get little benefit from being on it and lack the power to negotiate better terms.
This problem is exacerbated by the company’s refusal to do all it can to keep unlicensed and unpaid copies of creative works off its websites. Google’s Content ID technology has a great deal of promise but could be far more effective if the company genuinely cared about finding and removing unlicensed music and video and worked as hard to solve this problem as it does other technical challenges. But as long as Google and YouTube earn millions through ads and data collection even when they appear alongside unlicensed works, that will never happen.
Similarly, for no logical reason, Content ID is not equally available to all creators, creating a two-tiered system of digital haves and have nots that Google and YouTube can manipulate and exploit.
We hope your review will evaluate Google’s and YouTube’s incentives around licensing of creative works and policing its platform and expose the ways these issues drive down creative incomes and hurt diverse and independent creators and their fans.
Facebook and its Instagram subsidiary use music and the connection between fans and artists to grow and drive engagement (seven of the top ten Facebook accounts and four of the top ten Instagram accounts are artists). But it then exploits these relationships and leverages its own gatekeeper power in multiple abusive ways.
Facebook has structured its feeds and timelines so that, as a practical matter, the only way for artists to be sure their fans see and engage with important material is to pay Facebook to boost or promote their postings. Many creators (such as George Takei) have complained about having to pay to communicate in a meaningful way with fans who have specifically come to Facebook to connect with them.
That harm is compounded because Facebook uses the data it collects not just to charge artists to reach their fans, but also to let other companies and advertisers reach those same fans as well. Advertisers who in the past would have worked directly with an artist to reach or communicate with their fanbase now pay Facebook and cut artists out altogether.
Facebook must also do more to create a safe and healthy environment for everyone on the platform.
The abuse and harassment faced by virtually every marginalized community remains an existential long-term threat to our culture and society, ultimately impacting the economics, reach, and bottom line of every modern business. And these problems are especially pernicious on these indispensable monopoly platforms, when victims have nowhere else to go. We urge you to look at these issues as part of a top to bottom review of the business practices of these platforms and how they impact markets and consumers.
Twitter is used more and more to post and share unlicensed videos and links to piracy websites and apps and is one of the most serious emerging threats to creators. The app’s fleeting structure and opaque, chaotic timelines are quickly turning into a piracy “wild wild west.”
Even worse, instead of acting as a partner by providing creators effective tools to search for unlicensed works, streams, and links, Twitter charges creators to monitor its network. It has refused to negotiate affordable, ready access to its “firehose” of raw tweets that could automate and simplify this process, even though it has given this data feed to other experts and outsiders in the past. Taken together, the company’s practices effectively force music creators to scour the public interface and send individual notices requesting the takedown of pirated links, an unaffordable, tweet-by-tweet process virtually no one can manage effectively.
Twitter should remove the fees it charges for network monitoring and work more closely with the music community to develop effective ways to keep unlicensed creative works, streams, and links off its platform, including providing meaningful access to the twitter data firehose. As it joins and benefits from the creative ecosystem, the company should cooperate and collaborate with its peers, rather than doing the bare minimum and exploiting artists’ needs.
The antitrust problems created by Amazon’s role as both a distributor in its own right and a platform for other sellers and services are well understood. The company’s massive data stockpiles and ability to monitor its competitors from “inside” their own transactions and operations threaten genuine competition in virtually every sector of the US economy.
Amazon’s ongoing efforts to launch a streaming music service as part of its Prime family of products should be carefully scrutinized as part of your review. While more competition is always welcome and Amazon music is a royalty-paying service, we are concerned about the dangers of predatory/sub-market pricing in a service that Amazon operates as a “loss leader.”
In general, creators need an economy that more accurately sees and values their work; not one with cut-rate prices that entangles music even more deeply in a web of soulless data collection and “content distribution” operations. The risk that Amazon’s music product drives royalties down in an uncompetitive way is severe.
Amazon’s treatment of musicians and independent label owners also needs scrutiny. Our members have run into a host of logistical obstacles and communication breakdowns when they try to distribute physical products using Amazon’s platform and are concerned about Amazon’s ability to burden competition by erecting practical and economic barriers to hamper music distributors that might compete with the company’s offerings.
We also urge you to scrutinize Amazon’s music-related data holdings and the threat they pose to genuine competition in the music business. Not even the largest record companies or streaming music services have access to anything like the massive consumer data records held by Amazon. Fair competition when the game is already so stacked seems almost impossible to imagine.
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Thank you for reviewing these vital issues and working to bring real oversight, accountability, and reform to the dominant technology platforms.
Artist Rights Alliance
cc: Chairman Jerrold Nadler, Committee on the Judiciary
Ranking Member Doug Collins, Committee on the Judiciary