This morning many of my Facebook friends who are DJs or musicians were up in arms about the controversial new changes that Facebook will apparently be rolling out on 1 October, which might not only prevent DJs and musicians from live streaming, but may even result in their Pages getting taken down!
This is alarming and upsetting for many of us who have been live streaming our music - either shows or DJ sets - on Facebook especially because this pandemic has resulted in all concerts being cancelled and venues being closed all over the world.
But is it really as drastic as it appears? The answer is not so simple. I'll be updating this article (and highlighting the updates) as we approach 1 October, so bookmark it and remember to visit again.
- Legal position
- Review of news reports
- Facebook's May 2020 Clarification
- Facebook updates NME on 13 September
- What should musicians and DJs do?
Legal position
Before we begin, here are my views as a former copyright lawyer (and they are not to be taken as legal advice, you must seek your own lawyer).
- This is mostly contract law, not copyright law. We don't get to argue 'fair use' or other copyright defences, because we agree (by the very act of using Facebook) to these terms and conditions.
- This is enforced by machine, not by human, and the appeal process is not going to be simple. So if the machine makes a mistake and takes down your music stream (or worse still, your Page), you will have a hard time going through the various Facebook reporting hoops to beg to restore it. Again, we agree (by using Facebook) to these terms
- These are terms and conditions that a corporation sets up to protect itself. It chooses to enforce them where and when it wants. The fact that some music streams have not been taken down is not an indication that other, similar or identical, music streams will be safe.
Review of the various news reports
Digital DJ Tips reports "DJs Scared Facebook Livestream Ban Is Coming"
https://www.digitaldjtips.com/2020/09/facebook-dj-livestreaming-ban/ (highlights are mine)
In its updated terms of service, which come into force on 1 October, Facebook states users may not publish content that “infringes or violates someone else’s … intellectual property rights”, going on to say that “We … can remove or restrict access to your content, services or information if we determine that doing so is reasonably necessary to avoid or mitigate adverse legal or regulatory impacts to Facebook.”
It then links to “specific music guidelines, which state: “You may not use videos on our Products to create a music listening experience … If you use videos on our Products to create a music listening experience for yourself or for others, your videos will be blocked and your page, profile or group may be deleted. This includes Live.”
The full guidelines go on to describe scenarios where bans are likely to be enforced, but the message is clear: Facebook is for sharing with family and friends, not for sharing music – unless you happen to be big enough to get an exception to the rules for your commercial enterprise.
BUT the article has been updated (highlights are mine), so we don't know what the actual outcome will be
UPDATE: Facebook has reached out to us asking us to state that the music guidelines linked to in the new T&Cs were actually written in 2018, although they bear no different date. We’ve asked for clarification on what this means for DJs, and will update further should we receive anything useful in reply.
DJ Tech Tools reports "DJs might soon have to say goodbye to Facebook Live"
https://djtechtools.com/2020/09/08/djs-might-soon-have-to-say-goodbye-to-facebook-live/ (highlights again are mine, which show that this problem already exists, it's not new)
Let’s be clear: while this is an explicit change in the Terms of Service, Facebook already does this type of music content policing on both uploaded videos and Facebook Live. There are plenty of stories of DJs this summer getting their streams turned off automatically after a certain amount of time, of streams being removed after the fact, and so on.
Loudwire reports "Facebook Can Now Delete Band Accounts for Livestreaming Shows"
https://loudwire.com/facebook-rule-change-bands-livestream-show-delete-account
Under this rule change, it would appear that something as innocuous as a band uploading their own music video natively to Facebook would result in a penalty. Facebook also owns Instagram, though no similar rule has been enacted on Instagram at this time.
Data Transmission reports "Facebook Set To Clamp Down On DJ Livestreaming From 1 October"
This article reports the terms and conditions as 'new terms', but as we can see from the other articles, the terms are already in place.
Selector reports "FACT CHECK: FACEBOOK RULES AFFECTING DJ LIVE STREAMS WILL NOT CHANGE ON OCTOBER 1ST"
This is the clearest indication that there are no new, more drastic rules - the same rules have been in place since 2018. They just haven't been enforced consistently.
The Music Guidelines section of Facebook’s Terms of Service has not been amended as part of the update preview. An archive of the page from May 2018 contains the same exact text verbatim as it appears at the time of publication.
The policy’s implications have long been a source of uncertainty for content creators navigating the copyright landscape.
Facebook's May 2020 Blog Post 'clarifying' the terms
https://www.facebook.com/facebookmedia/blog/updates-and-guidelines-for-including-music-in-video
(Thanks to Aaron Levitz for sharing this)
Straight from the horse's mouth - and this still applies because of the updated 'clarification' reported by NME (see below)
While the specifics of our licensing agreements are confidential, today we're sharing some general guidelines to help you plan your videos better:
- There are no limits on things such as music in Stories, or traditional musical performances (e.g. filming a live artist or band performing). [1]
- The greater the number of full-length recorded tracks in a video, the more likely it may be limited (more below on what we mean by "limited"). [2]
- Shorter clips of music are recommended. [3]
- There should always be a visual component to your video; recorded audio should not be the primary purpose of the video. [4]
[1] This means that live streaming a 'traditional' live band performance should be okay, but doesn't help DJ sets
[2] This is bad for DJ sets, and can also be a problem for artists whose performances include their own songs that are distributed by labels (the labels need to tell Facebook to 'whitelist' or allow the artists to use their own songs)
[3] This is also bad for DJ sets
[4] This hopefully should not be a problem, even more the most visually boring of live DJ sets ...
Latest update 13 September 2020
NME reports 'Facebook clarify what October update means for artists on the platform'
A spokesperson for Facebook has now confirmed to NME that, although new guidelines will come into effect across the site in October, the music guidelines have been in place for some time and will not affect artists using the site to livestream gigs or share their music.
The conditions will continue to apply instead to Facebook users including music in videos and livestreams to which they do not own the copyright.
But note that this will still cause problems for (1) DJ's, because DJ sets will most likely contain music that the DJ does not own copyright to, and (2) musicians with labels, because the songs are usually registered to the label and not the artist.
For (2), the musicians will need their labels to inform Facebook to allow the streams, otherwise Facebook's automated systems will kick in. For (1), we don't see any solution.
Cover Band Central explains how this is a problem
The question now is why is it so random? One of the singers we spoke to has had his live streams either muted after the fact, or pulled while he was live. With further research, he determined that there were specific artists that got noticed more quickly. So perhaps the FB legal team is just focusing on those for now. It’s all so new that everybody is still learning what tf is going on.
What should musicians and DJ's do from 1 October onward?
The problem for musicians and DJ's is that although the rules are not actually changing on 1 October, the existing rules are already very hostile to live streaming music shows, performances, DJ sets etc on Facebook Live or uploading video recordings of them onto Facebook Pages.
We already know of many cases where DJ or music streams have been taken down. Enforcement appears to be inconsistent so far - which is okay for casual users, but very risky for professional musicians and DJ's. The additional risk of having an official Page deleted is even worse.
All of the articles recommend moving over to YouTube Live, or Twitch, or Mixcloud. All of these sites have mobile apps and notification systems, and arguably give a much better interactive experience than Facebook Live. Given the uncertain situation, it looks like it's time to make the move away from Facebook. And we should do it NOW, not wait till 1 October, because the rules are already in force.
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