The below guest post is by Tristra Newyear Yeager, Chief Strategy Officer of music/tech PR firm Rock Paper Scissors. In it, she joins the dots between some potentially meaningful and high-profile legal cases taking place in the US, and the consequences they may have on music streaming platforms globally. Newyear Yeager also describes what she thinks the less obvious effects of maintaining an ever-increasing long tail of content under more complicated moderation laws might mean for artists, distributors, DSPs, and, ultimately, fans.
There’s plenty of talk about the pressures on current music streaming models, and on the real need and desire to fix them, in favor of the artists who make the music we love. But other forces are at work, at least in the U.S., that are about to apply pressure of a different sort. Music services may have to reckon with content moderation at last, right as the cost of their huge catalogs rises. Hard decisions are ahead for the huge swath of music and content once lovingly referred to as the long tail.
The U.S. is having a particularly bizarre and turbulent legal season when it comes to online content moderation. This battle is raging at the blurred lines between the deplatforming of harmful or hateful content and the silencing (perceived or real) of political perspectives. Two cases regarding social platforms, content, and liability are kicking off before the Supreme Court this month. States are also busy proposing laws to regulate content moderation, parts of which appear to be written by people unfamiliar with the internet.
Both Supreme Court cases challenge Section 230 of the Communications Decency Act, the notorious words that protect platforms from content liability and that conjured Web 2.0. One of these, Gonzales vs Google, argues, among other things, that platforms and services should be liable for recommendations. Aimed at big content, it could make life hard for platforms such as Wikipedia and Reddit.
Content moderation is also a hot legislative topic at state level. HB20, Texas’ content moderation law, has caused the most national buzz. Though paused for now by SCOTUS, HB20 would apply to any platform or service that fits certain fairly vague criteria (PDF download) and boasts more than 50 million US users. That includes YouTube. The implications of this law are, well, bonkers: Platforms are prohibited from taking down content based on the viewpoint of the user (!!!) and they are required to notify the public of content policy changes, which can only be made every 30 days.
Moderation is hard – but essential
Texas’ law is part of a bigger trend. Florida passed a similar law last year, though it was mostly stayed by an appellate judge. More than half of US states have copycat bills at some stage of the legislative process in conservative reaction to perceived “censorship” post-January 6.
If these laws succeed, and as the Supreme Court rules this session, a new circle of content moderation hell could open for music. With the flood of new releases (the oft-cited 100K tracks/day, which is likely closer to 25K-65K actual new songs a day, if we take out the box fans and other variously colored noise), there’s going to be some shit in there. Not to be flip about it, but if people can upload to your service, even indirectly, you’re going to have Nazis, pirates, and predators.
Audio already has significant content moderation woes. Audio is hard to moderate with current tools and takes time to process. Moderation requires specific language and cultural knowledge, and enough humans to apply it. In 2019, Facebook had 30,000+ moderators (half contractors), YouTube had in the tens of thousands, and Twitter had around 1,500, according to reporting in the Washington Post. And many would argue that these numbers were far too low.
Kinzen, the content moderation company acquired by Spotify, has fewer than 10 full-time employees and an unspecified number of contractors. They are likely more than overwhelmed already (as journalist Ashley Carman has pointed out) reviewing podcasts, to protect that lucrative ad market. What will happen when moderators have to potentially show their work to whatever American lawyers are feeling feisty?
The long tail is getting expensive
Music moderation is necessary, as music has long been a favorite method of hate groups for recruiting new members. Every time the Southern Poverty Law Center or Anti-Defamation League has a moment to poke around, they find a new crop of hate music on streaming services. These are the blatant ones. There are many borderline cases, ones that demand careful human moderation because music is multivalent and can encode messages very effectively. It’s played a part in resisting countless regimes and autocrats, but like any tool, it can be used in other, more destructive ways.
And what if a company can be sued for recommending it to a user, or for taking it down?
SCOTUS’s Section 230 fest and HB20’s Texas twister are merging with another storm, a trend Mark Mulligan laid out late last year that’s a big, if nerdy, deal. The long tail is getting very, very, VERY long. It’s getting very expensive to store all this tail in the cloud. The vastness of music catalogs is becoming a minus, not the plus all hailed years ago, as it prevents music fans from enjoying what DSPs have to offer. There’s only so much sludge we’re willing to wade through. Music lovers are facing content moderation issues of our own.
Between scale dysphoria and inscrutable regulations, we may be witnessing the collapse of the infinite shelf. Models may have to change, beyond what Mulligan suggests (charging for full catalog access or only paying royalties to certain, legit/popular artists), even if most users and listeners barely notice. The cost of letting anyone distribute audio and making that audio accessible—and opening oneself up to liability—could become too great. DSPs, especially those who aren’t loss leaders cuddled in the warm embrace of a big tech company, may not be able to support infinite shelves while also increasing their margins.
The long tail can whip back and sting us
Where would the gates go up in existing supply chains? One place might be distributors, who already do a large amount of quiet but very heavy lifting—at least the good ones do—to make sure music is legal and that metadata is as clean as it can be. They may charge for the enhanced service of getting vetted music to DSPs, reversing the race to the bottom that distribution has run in the last decade.
DSPs may also throw up defensive walls, with things like specialized, geographically specific pre-upload filters, maybe akin to those posited (and denounced) to deal with new European UGC-related laws. In this new world, it will no longer be quite as simple and dirt cheap to get music out there on commercial services. The tail may shorten. And DSPs may quietly find a way to lose all those orphan tracks with very few streams that they already have.
This is all speculation, of course. That said, there’s a grain of truth hidden in these conjectures. The infinite shelf is groaning under technical and societal burdens. It may collapse at some point. That time might be now. Like many of the purported wonders of the early internet, we’re seeing that scale has its shadow side. The long tail can whip back and sting us.
Header photo: Mark Thomas | Long Tail image by Hay Kranen / PD
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