Tag: TikTok

Good News for TikTok Users: The PRC Definitely Isn’t Interested in Your Data (Just the Global Internet Backbone, Apparently)

If you’re a TikTok user who has ever worried, even a tiny bit, that the People’s Republic of China might have an interest in your behavior, preferences, movements, or social graph, take heart. A newly released Joint Cybersecurity Advisory from intelligence agencies in the United States, Canada, the U.K., Australia, New Zealand, and a long list of allied intelligence agencies proves beyond any shadow of a doubt that the PRC is far too busy compromising the world’s telecommunications infrastructure to care about your TikTok “For You Page.”

Nothing to see here. Scroll on.

For those who like their reassurance with a side of evidence, the advisory—titled “Countering Chinese State Actors’ Compromise of Networks Worldwide to Feed Global Espionage System”—is one of the clearest, broadest warnings ever issued about a Chinese state-sponsored intrusion campaign. And, because the agencies involved designated it as not sensitive and may be shared publicly without restriction (TLP:CLEAR), you can read it yourself.

The World’s Telecom Backbones: Now Featuring Uninvited Guests

The intel agency advisory describes a “Typhoon class” global espionage ecosystem run through persistent compromises of backbone routers, provider-edge and customer-edge routers, ISP and telecom infrastructure, transportation networks, lodging and hospitality systems, government and military-adjacent networks.

This is not hypothetical. The advisory includes extremely detailed penetration chains: attackers exploit widely known “Common Vulnerabilities and Exposures” (CVEs) in routers, firewalls, VPNs, and management interfaces, then establish persistence through configuration modifications, traffic mirroring, injected services, and encrypted tunnels. This lets them monitor, redirect, copy, or exfiltrate traffic across entire service regions.

Put plainly: if your internet service provider has a heartbeat and publicly routable equipment, the attackers have probably knocked on the door. And for a depressingly large number of large-scale network operators, they got in.

This is classical intelligence tradecraft. The PRC’s immediate goal isn’t ransomware. It’s not crypto mining. It’s not vandalism. It’s good old-fashioned espionage: long-term access, silent monitoring, and selective exploitation.

What They’re Collecting: Clues About Intent

The advisory makes the overall aim explicit: to give PRC intelligence the ability to identify and track targets’ communications and movements worldwide.

That includes metadata on calls, enterprise-internal communications, hotel and travel itineraries, traffic patterns for government and defense systems, persistent vantage points on global networks.

This is signals intelligence (SIGINT), not smash-and-grab.

And importantly: this kind of operation requires enormous intelligence-analytic processing, not a general-purpose “LLM training dataset.” These are targeted, high-value accesses, not indiscriminate web scrapes. The attackers are going after specific information—strategic, diplomatic, military, infrastructure, and political—not broad consumer content.

So no, this advisory is not about “AI training.” It is about access, exfiltration, and situational awareness across vital global communications arteries.

Does This Tell Us Anything About TikTok?

Officially, no. The advisory never mentions TikTok, ByteDance, or consumer social media apps. It is focused squarely on infrastructure.

But from a strategic-intent standpoint, it absolutely matters. Because when you combine:

1. Global telecom-layer access
2. Persistent long-term SIGINT footholds
3. The PRC’s demonstrated appetite for foreign behavioral data
4. The existence of the richest behavioral dataset on Earth—TikTok’s U.S. user base

—you get a coherent picture of the intelligence ecosystem the Chinese Communist Party is building on…I guess you’d have to say “the world”.

If a nation-state is willing to invest years compromising backbone routers, it is not a stretch to imagine what they could do with a mobile app installed on the phones of oh say 170 million Americans to pick a random number that conveniently collects social graphs, location traces, contact patterns, engagement preferences, political and commercial interests that are visible in the PRC.

But again, don’t worry. The advisory suggests only that Chinese state actors have global access to the infrastructure over which your TikTok traffic travels—not that they would dare take an interest in the app itself. And besides, the TikTok executives swore under oath to the U.S. Congress that it didn’t happen that way so it must be true.

After all, why would a government running a worldwide intrusion program want access to the largest behavioral-data sensor array outside the NSA?

If you still believe the PRC is nowhere near TikTok’s data, then this advisory will reassure you: it’s just a gentle reminder that Chinese state actors are burrowed into global telecom backbones, hotel networks, transportation systems, and military-adjacent infrastructure—pure souls simply striving to make sure your “For You” page loads quickly.

After all, why would a government running a worldwide network-intrusion program have any interest in the richest behavioral dataset on Earth?

TikTok After Xi’s Qiushi Article: Why China’s Security Laws Are the Whole Ballgame

Xi Jinping’s new article in Qiushi (the Chinese Communist Party Central Committee’s flagship theoretical public policy journal) repackages a familiar message: China will promote the “healthy and high-quality development” of the private economy, but under the leadership of the Chinese Communist Party. This is expressed in China’s statutory law as the “Private Economy Promotion Law.”  And of course we have to always remember that under the PRC “constitution,” statutes are primarily designed to safeguard the authority and interests of the Chinese Communist Party (CCP) rather than to protect the rights and privileges of individuals—because individuals don’t really have any protections against the CCP.  

For U.S. policymakers weighing what to do about TikTok, this is not reassuring rhetoric in my view. It is instead a reminder that, in China, private platforms ultimately operate within a legal-and-political framework that gives state-security organs binding powers over companies, the Chinese people, and their data.

According to the South China Morning Post:

In another show of support for China’s private sector, Beijing has released the details of a speech from President Xi Jinping which included vows the country would guarantee a level playing field for private firms, safeguard entrepreneurs’ lawful rights and interests, and step up efforts to solve their long-standing challenges, including overdue payments.

The full address, delivered in February to a group of China’s leading entrepreneurs, had not been made available to the public before Friday, when Qiushi – the ruling Communist Party’s theoretical journal – posted a transcript on its website.

“The policies and measures to promote the development of the private economy must be implemented in a solid and thorough manner,” Xi said in February. “Whatever the party Central Committee has decided must be resolutely carried out – without ambiguity, delay, or compromise

I will try to explain why the emphasis of Xi’s policy speech matters, and why the divest-or-ban logic for TikTok under US law (and it is a law) remains intact regardless of what may seem like “friendly” language about private enterprise.  It’s also worth remembering that whatever the result of the TikTok divestment may be, it’s just another stop along the way in the Sino-American struggle­—or something more kinetic.  As Clausewitz wrote in his other famous quotation, the outcomes produced by war are never final. (See Book I Chapter 1 aka the good stuff.)  Even the most decisive battlefield victory may have no lasting political achievement.  As we have seen time and again, the termination of one conflict often produces the necessary conditions for future conflict.

What Xi’s piece actually signals

Xi’s article combines pro-private-sector language (property-rights protection, market access, financing support) with an explicit call for Party leadership and ideological guidance in the private economy. In other words, the promise is growth within control, and not just any control but the control of the Party. There is no carve‑out from national-security statutes, no “TikTok exemption,” and no suggestion that private firms can decline cooperation when state-security laws apply consistent with China’s “unrestricted warfare” doctrine.

Recall that the CCP has designated the TikTok algorithm as a strategic national asset, and “national” in this context and the context of Xi’s article means the Chinese Communist Party of which Xi is President-for-Life.  This brother is not playing.

The laws that define the TikTok Divestment risk (not the press releases)

The core concern about TikTok is jurisdiction, or the CCP’s extra-territorial jurisdiction, a concept we don’t fully comprehend. Xi’s Qiushi article promises support for private firms under Party leadership. That means that the National Intelligence Law, Cybersecurity Law, Counter‑Espionage Law, and China’s data‑export regime remain in force and are controlling authority over companies like TikTok. For U.S. reviewers like CIFIUS, that means ByteDance‑controlled TikTok is, by design, subject to compelled, confidential cooperation with state‑security organs. 

As long as the TikTok platform and algorithm is ultimately controlled by a company subject to the CCP’s security laws, U.S. reviewers correctly assume those laws can reach the service, even if operations are partly localized abroad. MTP readers will recall the four pillars of China’s statutory security regime that matter most in this context, being:

National Intelligence Law (2017). Requires all organizations and citizens to support, assist, and cooperate with state intelligence work, and to keep that cooperation secret. Corporate policies and NDAs do not trump statutory duties, especially in the PRC.

Cybersecurity Law (2017). Obligates “network operators” to provide technical support and assistance to public‑security and state‑security organs, and sets the baseline for security reviews and Multi‑Level Protection (MLPS) obligations.

Counter‑Espionage Law (2023 amendment). Broadens the scope of what counts as “espionage” to include data, documents, and materials related to national security or the “national interest,” increasing the zone where requests can be justified.

Data regime (Data Security Law (DSL), Personal Information Protection Law (PIPL), and the Cyberspace Administration of China (CAC) regulatory measures). Controls cross‑border transfers through security assessments or standard contracts and allows denials on national‑security grounds. Practically, many datasets can’t leave China without approval—and keys/cryptography used onshore must follow onshore rules.

None of the above is changed by the Private Economy Promotion Law or by Xi’s supportive tone toward entrepreneurs. The laws remain superior in any conflict such as the TikTok divest-or-ban law.

It is these laws that are at the bottom of U.S. concerns about TikTok’s data scraping–it is, after all, spyware with a soundtrack.  There’s a strong case to be made that U.S. artists, songwriters, creators and fans are all dupes of TikTok as a data collection tool  in a country that requires its companies to hand over to the Ministry of State Security all it needs to support the intelligence mission (MSS is like the FBI and CIA in one agency with a heavy ration of FSB).

Zhang Yiming, founder of ByteDance and former public face of TikTok, stepped down as CEO in 2021 but remains Chairman and key shareholder. He controls more than half of the company’s voting rights and retains about a 21% stake. That also makes him China’s richest man. Though low-profile publicly, he is actively guiding ByteDance’s AI strategy and long-term direction. Mr. Zhang does not discuss this part.  It should come as no surprise–according to his Wikipedia page, Mr. Zhang understands what happens when you don’t toe the Party line:

ByteDance’s first app, Neihan Duanzi, was shut down in 2018 by the National Radio and Television Administration. In response, Zhang issued an apology stating that the app was “incommensurate with socialist core values“, that it had a “weak” implementation of Xi Jinping Thought, and promised that ByteDance would “further deepen cooperation” with the ruling Chinese Communist Party to better promote its policies.

ByteDance’s AI strategy is built on aggressive large-scale data scraping including from TikTok. Its proprietary crawler, ByteSpider, dominates global web-scraping traffic, collecting vast amounts of content at speeds far beyond rivals like OpenAI. This raw data fuels TikTok’s recommendation engine and broader generative AI development, giving ByteDance rapid adaptability and massive training inputs. Unlike OpenAI, which emphasizes curated datasets, ByteDance prioritizes scale, velocity, and real-time responsiveness, integrating insights from TikTok user behavior and the wider internet. This approach positions ByteDance as a formidable AI competitor, leveraging its enormous data advantage to strengthen consumer products, expand generative AI capabilities, and consolidate global influence.

I would find it very, very hard to believe that Mr. Zhang is not a member of the Chinese Communist Party, but in any event he understands very clearly what his role is under the National Intelligence Law and related statutes.  Do you think that standing up to the MSS to protect the data privacy of American teenagers is consistent with “Xi Jinping Thought”?

Why this makes TikTok’s case harder, not easier

For Washington, the TikTok problem is not market access or entrepreneurship. It’s the data governance chain. Xi’s article underscores that private firms are expected to align with the Party Center’s decisions and to embed Party structures. Combine that political expectation with the statutory duties described above, and you get a simple inference: if China’s security services want something—from data access to algorithmic levers—ByteDance and its affiliates are obliged to give it to them or at least help, and are often barred from disclosing that help.

That’s why divestiture has become the U.S. default: the only durable mitigation against TikTok is to place ownership and effective control outside PRC legal reach, with clean technical and organizational separation (code, data, keys, staffing, and change control). Anything short of that leaves the fundamental risk untouched.

Where the U.S. law and process fit

Congress’s divest‑or‑ban statute requires TikTok to be controlled by an entity not subject to PRC direction, on terms approved by U.S. authorities. Beijing’s export‑control rules on recommendation algorithms make a full transfer difficult if not impossible; that’s why proposals have floated a U.S. “fork” with separate code, ops, and data. But Xi’s article doesn’t move the ball: it simply reinforces that CCP jurisdiction over private platforms is a feature, not a bug, of the system.

Practical implications (policy and product)

For policymakers: Treat Xi’s article as confirmation that political control and security statutes are baked in. Negotiated “promises” won’t outweigh legal duties to assist intelligence work. Any compliance plan that assumes voluntary transparency or a “hands‑off” approach is fragile by design.

For platforms: If you operate in China, assume compelled and confidential cooperation is possible and in this case almost a certainty if it hasn’t already happened. Architect China operations as least‑privilege, least‑data environments; segregate code and keys; plan for outbound data barrrers as a normal business condition.

For users and advertisers: The risk discussion is about governance and jurisdiction, not whether a particular management team “would never do that.” They would.  Corporate intent can’t override state legal authority particularly when the Party’s Ministry of State Security is doing the asking.

Now What?

Xi’s article does not soften TikTok’s regulatory problem in the United States. If anything, it sharpens it by reiterating that the private economy advances under the Party’s direction, never apart from it. When you combine Mr. Zhang’s role with Bytedance in China’s AI national champions, it’s pretty obvious whose side TikTok is on.

Wherever the divest-or-ban legislation ends up, it will inevitably set the stage for the next conflict.  If I had to bet today, my bet is that Xi has no intention of making a deal with the US that involves giving up the TikTok algorithm in violation of the Party’s export-control rules and access to US user data for AI training.

The Duty Comes From the Data: Rethinking Platform Liability in the Age of Algorithmic Harm

For too long, dominant tech platforms have hidden behind Section 230 of the Communications Decency Act, claiming immunity for any harm caused by third-party content they host or promote. But as platforms like TikTok, YouTube, and Google have long ago moved beyond passive hosting into highly personalized, behavior-shaping recommendation systems, the legal landscape is shifting in the personal injury context. A new theory of liability is emerging—one grounded not in speech, but in conduct. And it begins with a simple premise: the duty comes from the data.

Surveillance-Based Personalization Creates Foreseeable Risk

Modern platforms know more about their users than most doctors, priests, or therapists. Through relentless behavioral surveillance, they collect real-time information about users’ moods, vulnerabilities, preferences, financial stress, and even mental health crises. This data is not inert or passive. It is used to drive engagement by pushing users toward content that exploits or heightens their current state.

If the user is a minor, a person in distress, or someone financially or emotionally unstable, the risk of harm is not abstract. It is foreseeable. When a platform knowingly recommends payday loan ads to someone drowning in debt, promotes eating disorder content to a teenager, or pushes a dangerous viral “challenge” to a 10-year-old child, it becomes an actor, not a conduit. It enters the “range of apprehension,” to borrow from Judge Cardozo’s reasoning in Palsgraf v. Long Island Railroad (one of my favorite law school cases). In tort law, foreseeability or knowledge creates duty. And here, the knowledge is detailed, intimate, and monetized. In fact it is so detailed we had to coin a new name for it: Surveillance capitalism.

Algorithmic Recommendations as Calls to Action

Defenders of platforms often argue that recommendations are just ranked lists—neutral suggestions, not expressive or actionable speech. But I think in the context of harm accruing to users for whatever reason, speech misses the mark. The speech argument collapses when the recommendation is designed to prompt behavior. Let’s be clear, advertisers don’t come to Google because speech, they come to Google because Google can deliver an audience. As Mr. Wanamaker said, “Half the money I spend on advertising is wasted; the trouble is I don’t know which half.” If he’d had Google, none of his money would have been wasted–that’s why Google is a trillion dollar market cap company.

When TikTok serves the same deadly challenge over and over to a child, or Google delivers a “pharmacy” ad to someone seeking pain relief that turns out to be a fentanyl-laced fake pill, the recommendation becomes a call to action. That transforms the platform’s role from curator to instigator. Arguably, that’s why Google paid a $500,000,000 fine and entered a non prosecution agreement to keep their executives out of jail. Again, nothing to do with speech.

Calls to action have long been treated differently in tort and First Amendment law. Calls to action aren’t passive; they are performative and directive. Especially when based on intimate surveillance data, these prompts and nudges are no longer mere expressions—they are behavioral engineering. When they cause harm, they should be judged accordingly. And to paraphrase the gambling bromide, the get paid their money and they takes their chances.

Eggshell Skull Meets Platform Targeting

In tort law, the eggshell skull rule (Smith v. Leech Brain & Co. Ltd. my second favorite law school tort case) holds that a defendant must take their victim as they find them. If a seemingly small nudge causes outsized harm because the victim is unusually vulnerable, the defendant is still liable. Platforms today know exactly who is vulnerable—because they built the profile. There’s nothing random about it. They can’t claim surprise when their behavioral nudges hit someone harder than expected.

When a child dies from a challenge they were algorithmically fed, or a financially desperate person is drawn into predatory lending through targeted promotion, or a mentally fragile person is pushed toward self-harm content, the platform can’t pretend it’s just a pipeline. It is a participant in the causal chain. And under the eggshell skull doctrine, it owns the consequences.

Beyond 230: Duty, Not Censorship

This theory of liability does not require rewriting Section 230 or reclassifying platforms as publishers although I’m not opposed to that review. It’s a legal construct that may have been relevant in 1996 but is no longer fit for purpose. Duty as data bypasses the speech debate entirely. What it says is simple: once you use personal data to push a behavioral outcome, you have a duty to consider the harm that may result and the law will hold you accountable for your action. That duty flows from knowledge, very precise knowledge that is acquired with great effort and cost for a singular purpose–to get rich. The platform designed the targeting, delivered the prompt, and did so based on a data profile it built and exploited. It has left the realm of neutral hosting and entered the realm of actionable conduct.

Courts are beginning to catch up. The Third Circuit’s 2024 decision in Anderson v. TikTok reversed the district court and refused to grant 230 immunity where the platform’s recommendation engine was seen as its own speech. But I think the tort logic may be even more powerful than a 230 analysis based on speech: where platforms collect and act on intimate user data to influence behavior, they incur a duty of care. And when that duty is breached, they should be held liable.

The duty comes from the data. And in a world where your data is their new oil, that duty is long overdue.

TikTok Extended

Imagine if the original Napster had received TikTok-level attention from POTUS?  Forget I said that.  The ongoing divestment of TikTok from its parent company ByteDance has reached yet another critical point with yet another bandaid.  Congress originally set a January 19, 2025 deadline for ByteDance to either sell TikTok’s U.S. operations or face a potential ban in the United States as part of the Protecting Americans from Foreign Adversary Controlled Applications Act or “PAFACA” (I guess “covfefe” was taken). The US Supreme Court upheld that law in TikTok v. Garland.

When January 20 came around, President Trump gave Bytedance an extension to April 5, 2025 by executive order. When that deadline came, President Trump granted an extension to the extension to the January 19 deadline by another executive order, providing additional time for ByteDance to finalize a deal to divest. The extended deadline now pushes the timeline for divestment negotiations to July 1, 2025.

This new extension is designed to allow for further negotiation time among ByteDance, potential buyers, and regulatory authorities, while addressing the ongoing trade issues and concerns raised by both the U.S. and Chinese governments. 

It’s getting mushy, but I’ll take a stab at the status of the divestment process. I might miss someone as they’re all getting into the act.

I would point out that all these bids anticipate a major overhaul in how TikTok operates which—just sayin’—means it likely would no longer be TikTok as its hundreds of millions of users now know it.  I went down this path with Napster, and I would just say that it’s a very big deal to change a platform that has inherent legal issues into one that satisfies a standard that does not yet exist.  I always used the rule of thumb that changing old Napster to new Napster (neither of which had anything to do with the service that eventually launched with the “Napster” brand but bore no resemblance to original Napster or its DNA) would result in an initial loss of 90% of the users. Just sayin’.

Offers and Terms

Multiple parties have expressed interest in acquiring TikTok’s U.S. operations, but the terms of these offers remain fluid due to ongoing negotiations and the complexity of the deal. Key bidders include:

Bytedance Investors: According to Reuters, “the biggest non-Chinese investors in parent company ByteDance to up their stakes and acquire the short video app’s U.S. operations.” This would involve Susquehanna International Group, General Atlantic, and KKR. Bytedance looks like it retains a minority ownership position of less than 20%, which I would bet probably means 19.99999999% or something like that. Reuters describes this as the front runner bid, and I tend to buy into that characterization. From a cap table point of view, this would be the cleanest with the least hocus pocus. However, the Reuters story is based on anonymous sources and doesn’t say how the deal would address the data privacy issues (other than that Oracle would continue to hold the data), or the algorithm. Remember, Oracle has been holding the data and that evidently has been unsatisfactory to Congress which is how we got here. Nothing against Oracle, but I suspect this significant wrinkle will have to get fleshed out.

Lawsuit by Bidder Company Led by Former Myspace Executive: In a lawsuit in Florida federal court by TikTok Global LLC filed April 3, TikTok Global accuses ByteDance, TikTok Inc., and founder Yiming Zhang of sabotaging a $33 billion U.S. acquisition deal by engaging in fraud, antitrust violations, and breach of contract. The complaint alleges ByteDance misled regulators, misappropriated the “TikTok Global” brand, and conspired to maintain control of TikTok in violation of U.S. government directives. The suit brings six causes of action, including tortious interference and unjust enrichment, underscoring a complex clash over corporate deception and national security compliance.

Oracle and Walmart: This proposal, which nearly closed in 2024 (I guess), involved a sale of TikTok’s U.S. business to a consortium of U.S.-based companies, with Oracle managing data security and infrastructure. ByteDance was to retain a minority stake in the new entity. However, this deal has not closed, who knows why aside from competition and then there’s those trade tariffs and the need for approval from both U.S. and Chinese regulators who have to be just so chummy right at the moment.

AppLovin: A preliminary bid has been submitted by AppLovin, an adtech company, to acquire TikTok’s U.S. operations. It appears that AppLovin’s offer includes managing TikTok’s user base and revenue model, with a focus on ad-driven strategies, although further negotiations are still required.  According to Pitchbook, “AppLovin is a vertically integrated advertising technology company that acts as a demand-side platform for advertisers, a supply-side platform for publishers, and an exchange facilitating transactions between the two. About 80% of AppLovin’s revenue comes from the DSP, AppDiscovery, while the remainder comes from the SSP, Max, and gaming studios, which develop mobile games. AppLovin announced in February 2025 its plans to divest from the lower-margin gaming studios to focus exclusively on the ad tech platform.”  It’s a public company trading as APP and seems to be worth about $100 billion.   Call me crazy, but I’m a bit suspicious of a public company with “lovin” in its name.  A bit groovy for the complexity of this negotiation, but you watch, they’ll get the deal.

Amazon and Blackstone: Amazon and Blackstone have also expressed interest in acquiring TikTok or a stake in a TikTok spinoff in Blackstone’s case. These offers would likely involve ByteDance retaining a minority interest in TikTok’s U.S. operations, though specifics of the terms remain unclear.  Remember, Blackstone owns HFA through SESAC.  So there’s that.

Frank McCourt/Project Liberty:  The “People’s Bid” for TikTok is spearheaded by Project Liberty, founded by Frank McCourt. This initiative aims to acquire TikTok and change its platform to prioritize user privacy, data control, and digital empowerment. The consortium includes notable figures such as Tim Berners-Lee, Kevin O’Leary, and Jonathan Haidt, alongside technologists and academics like Lawrence Lessig.  This one gives me the creeps as readers can imagine; anything with Lessig in it is DOA for me.

The bid proposes migrating TikTok to a new open-source protocol to address concerns raised by Congress while preserving its creative essence. As of now, the consortium has raised approximately $20 billion to support this ambitious vision.  Again, these people act like you can just put hundreds of millions of users on hold while this changeover happens.  I don’t think so, but I’m not as smart as these city fellers.

PRC’s Reaction

The People’s Republic of China (PRC) has strongly opposed the forced sale of TikTok’s U.S. operations, so there’s that. PRC officials argue that such a divestment would be a dangerous precedent, potentially harming Chinese tech companies’ international expansion. And they’re not wrong about that, it’s kind of the idea. Furthermore, the PRC’s position seems to be that any divestment agreement that involves the transfer of TikTok’s algorithm to a foreign entity requires Chinese regulatory approval.  Which I suspect would be DOA.

They didn’t just make that up– the PRC, through the Cyberspace Administration of China (CAC), owns a “golden share” in ByteDance’s main Chinese subsidiary. This 1% stake, acquired in 2021, grants the PRC significant influence over ByteDance including the ability to influence content and business strategies.

Unsurprisingly, ByteDance must ensure that the PRC government (i.e., the Chinese Communist Party) maintains control over TikTok’s core algorithm, a key asset for the company. PRC authorities have been clear that they will not approve any sale that results in ByteDance losing full control over TikTok’s proprietary technology, complicating the negotiations with prospective buyers.  

So a pressing question is whether TikTok without the algorithm is really TikTok from the users experience.  And then there’s that pesky issue of valuation—is TikTok with an unknown algo worth as much as TikTok with the proven, albeit awful, current algo.

Algorithm Lease Proposal

In an attempt to address both U.S. security concerns and the PRC’s objections, a novel solution has been proposed: leasing TikTok’s algorithm. Under this arrangement, ByteDance would retain ownership of the algorithm, while a U.S.-based company, most likely Oracle, would manage the operational side of TikTok’s U.S. business.

ByteDance would maintain control over its technology, while allowing a U.S. entity to oversee the platform’s operation within the U.S. The U.S. company would be responsible for ensuring compliance with U.S. data privacy laws and national security regulations, while ByteDance would continue to control its proprietary algorithm and intellectual property.

Under this leasing proposal, Oracle would be in charge of managing TikTok’s data security and ensuring that sensitive user data is handled according to U.S. regulations. This arrangement would allow ByteDance to retain its technological edge while addressing American security concerns regarding data privacy.

The primary concern is safeguarding user data rather than the algorithm itself. The proposal aims to address these concerns while avoiding the need for China’s approval of a full sale.

Now remember, the reason we are in this situation at all is that Chinese law requires TikTok to turn over on demand any data it gathers on TikTok users which I discussed on MTP back in 2020. The “National Intelligence Law” even requires TikTok to allow the PRC’s State Security police to take over the operation of TikTok for intelligence gathering purposes on any aspect of the users’ lives.  And if you wonder what that really means to the CCP, I have a name for you: Jimmy Lai. You could ask that Hong Konger, but he’s in prison.

This leasing proposal has sparked debate because it doesn’t seem to truly remove ByteDance’s influence over TikTok (and therefore the PRC’s influence). It’s being compared to “Project Texas 2.0,” a previous plan to secure TikTok’s data and operations.  I’m not sure how the leasing proposal solves this problem. Or said another way, if the idea is to get the PRC’s hands off of Americans’ user data, what the hell are we doing?

Next Steps

As the revised deadline approaches, I’d expect a few steps, each of which has its own steps within steps:

Finalization of a Deal: This is the biggest one–easy to say, nearly impossible to accomplish.  ByteDance will likely continue negotiating with interested parties while they snarf down user data, working to secure an agreement that satisfies both U.S. regulatory requirements and Chinese legal constraints. The latest extension provides runway for both sides to close key issues that are closable, particularly concerning the algorithm lease and ByteDance’s continued role in the business.

Operational Contingency:  I suppose at some point the buyer is going to be asked if whatever their proposal is will actually function and whether the fans will actually stick around to justify whatever the valuation is.  One of the problems with rich people getting ego involved in a fight over something they think is valuable is that they project all kinds of ideas on it that show how smart they are, only to find that once they get the thing they can’t actually do what they thought they would do.  By the time they figure out that it doesn’t work, they’ve moved on to the next episode in Short Attention Span Theater and it’s called Myspace.

China’s Approval: ByteDance will need to secure approval from PRC regulatory authorities for any deal involving the algorithm lease or a full divestment. So why introduce the complexity of the algo lease when you have to go through that step anyway?  Without PRC approval, any sale or lease of TikTok’s technology is likely dead, or at best could face significant legal and diplomatic hurdles.

Legal Action: If an agreement is not reached by the new deadline of July 1, 2025, further legal action could be pursued, either by ByteDance to contest the divestment order or by the U.S. government to enforce a ban on TikTok’s operations.  I doubt that President Trump is going to keep extending the deadline if there’s no significant progress.

If I were a betting man, I’d bet on the whole thing collapsing into a shut down and litigation, but watch this space.

It comes full circle–Chief Justice Roberts raises some of the same issues as I raised in 2020 at MusicBiz

The Chief asks the most relevant foundational question in the first five minutes–and it was straight downhill for TikTok after that. See transcript at p. 8.

TikTok v Garland Transcript Oral Argument 24-656_1an2Download

And see the class materials from the MusicBiz Association Conference panel I moderated in 2020

musicbiz-tiktok-materials-v-2-2Download

After Universal, TikTok Throws Its Toys Out of the Pram In Concerted Refusal to Deal with Merlin

Here’s some news, and make sure you’re sitting down: Still stinging from its encounter with Universal, TikTok wants its counterparties weak, divided and broke. So naturally TikTok is going after Merlin in TikTok’s latest concerted refusal to deal.

Let’s remember the basic premise behind Merlin, the licensing body that independent labels can opt into at their election. Independent labels as a group have a combined market share that is on par with a major label. I recall hearing this from Alison Wenham back when the Association of Independent Music was founded back in 1999. Joining together, independent labels could be strong, united and claiming their fair share right along side the major labels. (Unclear why this seems to be lost on the publishers.)

So after Mr. Tok got a spanking from Universal, TikTok are definitely not going to put up with resistance from independent labels, assuming TikTok are even in business by the time the dust settles. As Kristin Robinson reports in Billboard:

A TikTok spokesperson says that “TikTok would like to offer all of the world’s music to our users. We are committed to working with the independent sector as well as the major labels and publishers. We know that our community of over a billion music fans value the diversity and richness that independent music brings to our platform. We are committed to entering into direct deals with Merlin members in order to keep their music on TikTok.”

Founded in 2008, Merlin represents 15% of the global recorded music market, and it uses that collective market power to negotiate with digital partners on behalf of its members on a similar footing as the bigger major labels. 

So there you have it: TikTok doesn’t want any lip from independents that might put them on the same footing as the majors anymore than the MIC Coalition wants lip from GMR. The one thing that TikTok cannot say is that it’s more efficient for the company to negotiate separately with independents. This isn’t about efficiency–it’s about stopping a near Universal-level exodus from happening again. And not just stopping it this time, it’s about stopping it forever. 

In other words, crushing the resistance. That option wasn’t available to Mr. Tok when negotiating with Universal but it’s available now.

Of course you know that TikTok intends to hose the independents because the first thing they did before even discussing a potential deal is require the labels sign a nondisclosure agreement (which no doubt is nonnegotiable). Because nothing says transparency like secrecy. And what’s really great is that it’s no problem because nobody in the music business ever talks about their deals.

As Ms. Robinson reports:

Billboard obtained an email TikTok sent out to some Merlin members, stating that the short-form video app “decided not to renew [its] license agreements with Merlin” and that TikTok “may be able to do direct deals” with the labels, provided that they agree to sign a non-disclosure agreement (NDA). “The purpose of the NDA is to enable us to discuss direct licensing agreements with you.” The deadline to sign and return the NDA is Oct. 4. A TikTok spokesperson says, however, that any Merlin label that wishes to stay on TikTok after Oct. 31 can review and sign the TikTok and CapCut agreements anytime before Oct. 25.

Merlin told its members that it is doing “all [it] can to re-engage with TikTok… we have already made it clear to them that we are ready to hold an actual negotiation and address any concerns they may have.”

Actually, the purpose of the NDA is to keep the independent labels quiet under threat of lawsuit from Mr. Tok and his backers like Neil Shen and Sequoia China. TikTok’s feigned support for independent music is about as convincing as an ivory poacher joining PETA.

Study: The CCP’s Digital Charm Offensive: How TikTok’s Search Algorithm and Pro-China Influence Networks Indoctrinate GenZ Users in the United States

I’ve been concerned for a a good four years and with advancing velocity that TikTok’s is leveraging unsuspecting artists and fans to advance a murky agenda. And frankly duping most of the executives in our business into believing that TikTok was just another addictive social media site. There are many clinical issues with TikTok and the short video format, but behind all that is the algorithm.

CNN reports:

Allowing TikTok to continue to be operated by its current parent company could allow the Chinese government to covertly influence US elections, the Justice Department said in a court filing late Friday.

In a federal appeals court filing, prosecutors raised concerns that TikTok’s algorithm could be used in a “secret manipulation” campaign to “influence the views of Americans for its own purposes.”

“Among other things, it would allow a foreign government to illicitly interfere with our political system and political discourse, including our elections,” prosecutors wrote. The filing added, “if, for example, the Chinese government were to determine that the outcome of a particular American election as sufficiently important to Chinese interests.”

“Allowing the Chinese government to remain poised to use TikTok to maximum effectiveness at a moment of extreme importance presents an unacceptable threat to national security,” prosecutors wrote.

It should come as no surprise that the CCP government treats the TikTok algorithm as something of a state secret and has put export restrictions on the technology in an attempt to block any sale that includes the algorithm (which of course is TikTok’s primary asset).

A recent study from the Network Contagion Research Institute at Rutgers University may shed light on why this is all such a big deal to both state and federal governments in the US. That study finds:

Amplification of Pro-China and Irrelevant Content: TikTok amplifies frontier influencers (travel and lifestyle content accounts) and irrelevant or clickbait material, to crowd out discussion of CCP-driven ethnic genocide and human rights abuses on its platform.

Suppression of Anti-China Content: TikTok’s moderation algorithms significantly augment this suppression. The views-to-likes ratio for anti-China content on TikTok was 87% lower than pro-China content even though the content was liked nearly twice as much.

Cross-Platform Influence Operations: The CCP also uses frontier influencers and stateaffiliated
media to disseminate pro-China narratives to crowd out discussion of human rights abuses on Instagram and YouTube with tourism and culture content.

Psychological Indoctrination: A psychological survey of Americans (n=1214) shows that, among the platforms studied, TikTok screentime positively and uniquely predicted favorability towards China’s human rights record. Notably, heavy users of TikTok (i.e., those with >3 hours of daily screentime) demonstrated a roughly 50% increase in pro-China attitudes compared to non-users. This suggests that TikTok’s content may contribute to psychological manipulation of users, aligning with the CCP’s strategic
objective of shaping favorable perceptions among young audiences.

Strategic Assessment: NCRI assesses that the CCP is deploying algorithmic manipulation in combination with prolific information operations to impact user beliefs and behaviors on a massive scale and that these efforts prove highly successful on TikTok in particular. These findings underscore the urgent need for transparent regulation of social media algorithms, or even the creation of a public trust funded by the platforms themselves to safeguard democratic values and free will.

So there’s that.

Grifting Under Heaven: What happens if TikTok Shuts Itself Down?

It finally happened–Congress passed the  Protecting Americans from Foreign Adversary Controlled Applications Act that prohibits the distribution, maintenance, or provision of internet hosting services for applications that are directly or indirectly operated by foreign adversaries. This legislation would include applications owned by ByteDance, Ltd. (the company that owns TikTok) or social media companies controlled by foreign adversaries that pose a significant threat to national security.

According to a Reuters exclusive, the response from Bytedance is that they would rather shut down TikTok than sell it–if the sale included the TikTok algorithm:

“The algorithms TikTok relies on for its operations are deemed core to ByteDance’s overall operations, which would make a sale of the app with algorithms highly unlikely, said the sources close to the parent….

TikTok shares the same core algorithms with ByteDance domestic apps like short video platform Douyin, three of the sources said. Its algorithms are considered better than ByteDance rivals such as Tencent and Xiaohongshu, said one of them.

It would be impossible to divest TikTok with its algorithms as their intellectual property licence is registered under ByteDance in China and thus difficult to disentangle from the parent company, said the sources.”

Well then. Of course, one of the primary national security arguments supporting any First Amendment defense on a challenge by TikTok to the content neutral, time, place and manner regulation will involve both the data privacy and foreign actor mass media manipulation evidentiary hearings. I don’t know how you make that defense without access to the algorithm. So why so secretive?

One could therefore plausibly argue that refusing to put the algorithm on the table is as good as admitting that TikTok is manipulating US users through algorithmic emotional targeting and scraping their users private data to do so. That would directly undermine their First Amendment attack on the US government and be a big step toward proving the government’s case.

And, of course, that secret algorithm uses music as the honeypot to attract users from the very young to the not so young. Remember, if this issue ever comes up in a court as a defense for the government, it will likely be because TikTok brought the underlying lawsuit that gave rise to the defense, and then refused to comply with a subpoena for the key piece of evidence. We call that “bootstrapping” in the trade.

In the interest of full disclosure, I’ve been supporting a version of the foreign adversary divestment legislation since 2020 and did so publicly that year when I moderated a great panel at the Music Biz conference on this very subject. If that panel or this topic made you uncomfortable, it may be because you felt such a strong…let’s say attraction…to TikTok as either a marketer or user that you couldn’t imagine living without it. Or maybe you bought into the “exposure” benefits of TikTok. Or maybe you’d had no reason to think about the larger implications. More about that another time.

After the legislation passed–despite a US lobbying campaign against it worthy of The Internet Association…ahem–people are asking, now what? So let’s think about that.

The Universal Connection

TikTok’s future cannot be well understood without taking into account the withdrawal of Universal’s recordings and songs from the platform for commercial reasons. That withdrawal now looks even more prescient given the foreign adversary divestiture legislation. Is it materially different to make a deal with a company that is just another piggy Big Tech company that doesn’t value music and considers it a loss leader to get to the really big bundle of cash like Spotify stock, or to do a deal with that piggy company who has also been declared a tool of a strategic foreign adversary of the United States by none other than the President of the United States?

I think it rather is. So the two events are in some ways quite connected.

First of all, in the short run I would expect TikTok to immediately expand their direct licensing campaign which evidently has already snared Taylor Swift and do it quickly before anyone noticed that what was just a crappy licensing deal the day before President Biden signed the legislation into law, now is a crappy licensing deal from a declared foreign adversary of the United States. How that twist will affect the brand of Miss Americana remains to be seen.

One solution I would expect to get floated in coming days is the need for TikTok executives to register as foreign agents under the Foreign Agents Registration Act. According to the Congressional Research Service:

In 1938, the Foreign Agents Registration Act (22 U.S.C. §§611-621; FARA) was enacted to require individuals doing political or advocacy work on behalf of foreign entities in the United States to register with the Department of Justice and to disclose their relationship, activities, receipts, and disbursements in support of their activities. The FARA does not prohibit any specific activities; rather it seeks to require registration and disclosure of them….In 1966, FARA was amended to shift the focus from political propagandists to agents representing the economic interests of foreign principals. These amendments were partially the result of an investigation by the Senate Foreign Relations Committee into foreign sugar interests and other lobbying activities. The 1966 amendments changed several definitions in the law, prohibited contingent fee contracts, broadened exemptions to ensure legitimate commercial activities were not burdened, strengthened provisions for the disclosure and labeling of propaganda, and required the Department of Justice to issue regulations on the act (28 C.F.R. §5.1 et seq.).

FARA enforcement languished for a bit over the years. However, FARA enforcement against those who fail to register as a foreign agent has had a resurgence in popularity at the Department of Justice. I think it can fairly be said that requiring TikTok executives to register would be consistent with DOJ’s actions and is worth a discussion. The policy underlying FARA is for the public to be aware of who is whom–disclosure not imprisonment, or at least disclosure first.

Enter the Miasma of Angst

There is something of a miasma of angst around passing the foreign adversary divestment legislation as applied to TikTok which is partly due to an extraordinary amount of commercial activity between the US and China which may tend to mask the underlying kinetic tensions between our countries. It’s quite difficult for Americans to grasp this kinetic part due to the Great Firewall of China, the language and cultural barrier, and China’s own propaganda which is way, way more effective and long lasting than anything the Nazis dreamed up. TikTok is, after all, a danger close propaganda missile battery.

The legislation seems to assume that China is an “adversary” and not a “belligerent”. Is that actually true?

There are other rather inescapable events that suggests that the U.S. is already in a war with China, at least as far as the Chinese government are concerned. It helps to understand that when people say the Chinese Communist Party or “the CCP”, they mean the Chinese government and vice versa, a government ruled by Chairman for Life Xi Jinping. The Chinese constitution is, for example, the Constitution of the CCP.

Always remember that Usama Bin Laden declared war on the US but nobody took him seriously. Nuff said.

Why is that relevant to TikTok? Well, here’s another declaration of war on the US that nobody noticed. On May 14, 2019, the CCP government declared a “people’s war” against the United States as reported in the Pravda of China, the Global Times operated by Xinhua News Agency (the cabinet-level “news” agency run by the CCP):

“The most important thing is that in the China-US trade war, the US side fights for greed and arrogance … and morale will break at any point…The Chinese side is fighting back to protect its legitimate interests. The trade war in the US is the creation of one person and one administration, but it affects that country’s entire population…In China, the entire country and all its people are being threatened. For us, this is a real ‘people’s war.'”

What is the “people’s war”? It is an old Maoist phrase (remembering that Xi Jinping’s father fought with Mao during China’s Communist Revolution). It has a very specific meaning in the history of the Chinese Communist Party according to Wikipedia:

People’s war, also called protracted people’s war, is a Maoist military strategy. First developed by the Chinese communist revolutionary leader Mao Zedong (1893–1976), the basic concept behind people’s war is to maintain the support of the population and draw the enemy deep into the countryside (stretching their supply lines) where the population will bleed them dry through a mix of mobile warfare and guerrilla warfare. 

So in the dimension of “unrestricted warfare,” what end state would the CCP like to see? Bearing in mind that they will avoid a shooting war in favor of the various other dimensions of civil-military fusion and following Sun Tzu’s admonishment o subdue the enemy without fighting. One way would be to impose economic damage on the United States.

The Unrestricted Warfare Dimension

What is this “unrestricted warfare”? That is a much bigger topic and I cannot emphasize enough the importance for every American and really everyone to understand it. Literally “Unrestricted Warfare” is one of the most important books on military strategy and geopolitics that nobody has read.

We think the book was published in Mandarin In 1999; it could have been earlier. It was written by two colonels in the Peoples’ Liberation Army of the Peoples Republic of China and entitled Unrestricted Warfare. The title is variously translated as Unrestricted Warfare: Two Air Force Senior Colonels on Scenarios for War and the Operational Art in an Era of Globalization, or the more bellicose Unrestricted Warfare: China’s Master Plan to Destroy America. 

Why is this important? You must understand that when the colonels say “to destroy America” they actually mean that very thing. China’s military and civil goal is to replace the United States as the global hegemon under the “mandate of Heaven.” (See 2050 China: Understanding Xi Jinping Thought.)

No kidding.

The thesis of the book is that it is a mistake for a contemporary great power to think of war solely in military terms; war includes an economic, cyber, space, information war (especially social media like TikTok), and other dimensions–including kinetic–depending on the national interest at the time. I think of Unrestricted Warfare as an origin story for China’s civil and military fusion policy, later expressed in various statutes of the Chinese Communist Party that were on full display in the TikTok hearings before Congress.

Although the book was translated and certain of the cognoscenti read it in Mandarin (see Josh Rogan, Michal Pillsbury and Gen. Rob Spaulding), it was largely unnoticed until recently. Except in China–the CCP rewarded the authors handsomely: Colonel Qiao Liang retired as a major general in the PLA and Colonel Wang Xiangsui is a professor at Beihang University in Beijing following his retirement as a senior Colonel in the PLA (OF-5).

The point of both Bin Ladin’s 1998 fatwa and Unrestricted Warfare, and the 2019 people’s war declaration, is both that each of them declared war on America, and that no one paid attention. We know where that got us with bin Ladin, there are movies about it.

To War or Not?

So the first question is what is the argument that we are not at war currently with China under their definition? Particularly given that they declared war on us with just enough plausible deniability to make you feel bad about shutting down TikTok–see what I did there? (I think the CCP declared war started much, much longer ago, but let’s stick with their people’s war declaration as a recent tangible event to keep it manageable and ignore, oh, say island building, expanding to the largest navy in the world, and the rest of it. (Read The Hundred-Year Marathon and see what you think. It may be worth reviewing the history on the Anglo-German Naval Agreement indirectly referenced in a Noël Coward song.)

Don’t Let’s Be Beastly to the Germans by Noël Coward is reflective on “excessive humanitarians”

It is also worth remembering that should open hostilities with China actually break out, i.e., in the colonels’ words should the current level of unrestricted warfare go kinetic, CCP-owned companies operating in the US will fall under an entirely more intense level of scrutiny. This is permitted by international laws of armed conflict and doesn’t even require additional US national laws although there surely will be many.

In the first instance, is the ostensibly private company actually private? What if good old chummy Mr. Tok turned out to be a colonel in the People’s Liberation Army and just didn’t get around to telling anyone? (I don’t think anyone in Congressional hearings ever asked him.)

And what if TikTok complied with the CCP laws that apply to Bytedance for sure and may apply to TikTok that require there to be a CCP cadre in each company? (See Article 19 of China’s “Company Law.”) If a private company’s staff members are also members of the armed forces of a state or have combat functions for an organized armed group belonging to a party in the conflict, they are not considered civilians.  Further, if a private company is directly involved in military operations (e.g., cyber attacks or psy ops), it may lose its civilian status and become a legitimate military target under the Geneva Conventions. (Further reading, an excellent article from West Point on topic. I don’t think anyone ever asked Mr. Chew if he was a serving member of the PLA.)

So if China invades Taiwan and the US comes in on the side of Taiwan, but TikTok assists in even psychological warfare ops to support that war effort for China against Taiwan (and possibly the US), then what happens? What if it turns out that senior Tiks are reservists or active duty in the Peoples Liberation Army that they just kind of didn’t mention before? Good old Uncle Chew? This kind of thing can also get you sanctioned if you try hard enough. Remember this came up with Elon Musk when Starlink allegedly thwarted an attack by Ukraine (which he denied for other reasons).

So about those licenses….Do artists really want to be used as a honeypot? Especially if TikTok keeps its algorithm, ostensibly shuts down in the US, but parks outside the US and still assaults US users?

Chronology: The Week in Review: MLC Redesignation Proceeding Highlights Ownership Issues for the Government’s Musical Works Database; TikTok’s SOPA Problem; Google’s Nonindemnity Indemnity for AI

One of the few things Congress got right in Title I of the Music Modernization Act is the five-year review of the mechanical licensing collective. Or more precisely, whether the private company previously designated by the Copyright Office to conduct the functions of the Mechanical Licensing Collective should have another five years to continue doing whatever it is they do.

Impliedly, and I think a bit unfairly, Congress told the Copyright Office to approve its own decision to appoint the current MLC or admit they made a mistake. This is yet another one of the growing list oversights in the oversight. Wouldn’t it make more sense for someone not involved in the initial decision to be evaluating the performance of the MLC? Particularly when there are at least tens of millions changing hands as well as some highly compensated MLC employees, any one of whom makes more than the Copyright Royalty Judges.

What happens if the Register of Copyright actually fires The MLC, Inc. and designates a new MLC operator? The first question probably should be what happens to the vaunted MLC musical works database and the attendant software and accounting systems which seem to be maintained out of the UK for some reason.

I actually raised this question in a comment to the Copyright Office back in 2020. In short, my question was probably more of a statement: ‘‘The musical works database does not belong to the MLC or The MLC and if there is any confusion about that, it should be cleared up right away.” The Copyright Office had a very clear response:

While the mechanical licensing collective must ‘‘establish and maintain a database containing information relating to musical works,’’ the statute and legislative history emphasize that the database is meant to benefit the music industry overall and is not ‘‘owned’’ by the collective itself….Any use by the Office referring to the public database as ‘‘the MLC’s database’’ or ‘‘its database’’ was meant to refer to the creation and maintenance of the database, not ownership. [85 FR at 58172, text accompanying notes 30 and 31.]

So if the current operator of the MLC is fired, we know from the MMA and the Copyright Office guidance that one thing The MLC, Inc. cannot do is hold the database and its attendant systems hostage, or demand payment, or any other shadiness. These items do not belong to them so they must not assert control over that which they do not own.

Which would include the hundreds of millions of black box money that the MLC, Inc. has failed to distribute in going on four years. I’ve even heard cynics suggest that the market share distribution of black box will occur immediately following The MLC, Inc.’s redesignation and the corresponding renewal of HFA’s back office contract which seems to be worth about $10 million a year all by itself.

What would also have been helpful would be for Congress to have required the Copyright Office to publish evaluation criteria for what they expected the MLC’s operator to actually do as well as performance benchmarks. Like I said, it’s a bit unfair of Congress to put the Copyright Office in the unprecedented position of evaluating such an important role with no guidance whatsoever. Surely Congress did not intend for the Copyright Office to have unfettered autonomy in deciding what standards to apply to their review of a quasi-governmental agency like the MLC, yet seems to have defaulted to the guardrail of the Administrative Procedures Act or some other backstop to sustain checks and balances on the situation.

But at least the ownership question is settled.

Breaking the Internet Yet Again: TikTok’s SOPA Problem

TikTok users swarmed over the Capitol to protest and impede a Congressional vote that would force the sale of the ubiquitous TikTok. Can Camp Pelosi redux be far behind? Well, no, because this was a digital swarm which is just different, you see. It’s just different when Big Tech tries to protect an IPO.

TikTok’s tactics are very reminiscent of Google’s tactics with SOPA or Napster’s tactics with Camp Chaos.

But not even Napster had the brass to go to full on papal indulgences. Yes, that’s right: NunTok will save the IPO.

Nuns good, TikTok bad!

I wonder which Washington lobbyist thought of NunTok? Perhaps this guy:

Google’s Nonindemnity Indemnity for AI

Some generative AI platforms are trying to make users believe that the company will actually protect them from copyright infringement claims. When you drill down on what the promise actually is, it’s pretty flimsy and may itself be consumer fraud.

Serving Fans in Self Preservation Moves: A TikTok case study

Fans don’t expect you to give up your right to choose your channels or to survive. If you are in a situation where the platform like TikTok overplays their hand and is so unreasonable that you have to walk away, it’s not your fault. It’s your right. But it is undoubtedly inconvenient for fans when platforms are impossible to deal with and their use of the music they love to create UGC is disrupted due to business.

But although TikTok is undoubtedly a big platform, it’s not the only game in town and there are other platforms that are licensed among TikTok’s competitors, particularly YouTube, Facebook, Instagram, and Snapchat.

https://www.statista.com/statistics/1293870/us-social-media-platforms-short-form-video/

Of course, YouTube started the trend of putting up messages for fans saying “You can’t get what you want because of these enemies of humanity who refuse to recognize our Big Tech Godhead” or something like that. These messages use the terminating licensor’s branding. I have never understood why the public messaging when tracks are taken down for whatever reason is not a material deal point in any license.

These automatic messages are programmed by the terminated service alone. The copy in the message is written by the service alone. There is never input from and certainly no approval of the terminating licensor. 

I find this unusual. For example, these licenses frequently have negotiated rules about mutual approval of press releases, credit, use of brands, display of copyright notices and other public speech. These are widely accepted and largely standard provisions. So if there are rules about some public speech, surely it’s a short step to also include in those rules any automated messages that convey information to the public about the licensor’s exercise of their rights either during or after the term. That licensor approval, especially mutual approval with the licensee, seems quite reasonable particularly if that messaging includes a reference to the licensor or its branding.

It’s entirely justified for license negotiators to require a meeting of the minds about post termination messaging to our fans and their customers when tracks stop becoming available. (We may have driven fans/customers to the platform in the first place for uncompensated customer acquisition cost, but that’s another discussion.)

Points to Consider

Part of that messaging to fans could be suggesting that since that track is no longer available on TikTok (or whoever), go to a platform where it is available on licensed platforms. This is just good consumer information rather than creating the confusing implication that it’s not available on TikTok so it’s not available anywhere.

Then the question is how to convey that information on alternate legal sites in a way that doesn’t become an unreasonable expectation of the terminated service and also doesn’t favor someone else. It seems like one easy way to do this would be to create a page of licensed platforms that excludes the terminated platform and put that link in the “track unavailable” message. An example is the “Why Music Matters” site, but obviously excluding the terminated site as to the catalog concerned.

This will require having control over that message and the right to force a correction if the platform fails to comply.

It may not be that simple for fans to move videos from one platform to another with the music intact, but that should be considered.

Fans don’t expect artists or songwriters to take a rube deal just to keep making tracks available on a platform that doesn’t respect them. But both the platform and the copyright owner should want to make it easy on fans rather than confusing consumers with a self-serving message.

If you want to explain why a track is no longer available, explain it. Don’t make it more confusing.