When the Spotify music stops

Following on from Taylor Swift’s well-documented battle over payments to artists during Apple’s proposed free trial period for its new music streaming service, New York band Ohm and Sport upped the ante in the battle against the perceived unfair treatment of artists over royalty income from music streaming services.

The target this time was Spotify. While Spotify claimed
to have injected $2bn into the music industry by 2014, many consider the estimated royalties of between $0.006 and $0.0084 per play netted by artists to be inadequate and unfair.

In an attempt to address this apparent injustice, Ohm and Sport developed the Eternify app to coincide with the release of their first album. The app was designed to find music by the requested artist on the Spotify service and play it on continuous loops of 30 seconds.

Since Spotify pays artists
on a per listen basis, fans could effectively click and send unlimited money to their favourite artists for no more than the cost of their monthly Spotify subscription (and internet connection), with the app detailing how much money each fan had earned for their favourite artist. If Eternify was left running 24-hours a day for a week, an artist could theoretically earn
in excess of $100 per user in royalties that week.

Terms and conditions

Unsurprisingly, it did not take Spotify long to silence Eternify. But how can Spotify exercise that level of control over its users and developers? The answer lies in
its underlying terms and conditions. Spotify has separate terms and conditions for general users and for use of its application programme interface (API). Both sets contain a prohibition on anyone trying to ‘artificially increase play counts, follow counts or otherwise manipulate the Spotify service
(i) by using a script or automated process, (ii) by providing any form of compensation (financial or otherwise) to users, or (iii) by any other means’. Given that Eternify’s sole purpose was to increase play counts, it is unequivocal that the app and anyone using it breached this term.

In addition, the API terms incorporate a catch-all to ensure an app will breach the API terms if it causes a user to breach their own terms of use. The term states an app must not enable ‘access to, or use of, the Spotify service or Spotify content in violation of the Spotify terms and conditions of use’.

Furthermore, since Eternify failed to provide means for a user to click through to the real Spotify service, it also breached the requirement that any ‘metadata, cover art, and audio preview clips’ made available must include a link back to Spotify.

The above breaches of the terms and conditions provide Spotify with the right to terminate access to its service both by the app and its users.
In fact, the terms and conditions go further and give Spotify an absolute right of termination
at any time, for any reason,
at Spotify’s sole discretion.
That right of termination includes a right to disable the disputed app. This, it seems, is exactly what happened to the ill-fated Eternify, with Ohm and Sport confirming via Twitter they had been ‘forced to comply with a take-down notice from Spotify’.

Manipulating the system

So, what next? It seems that as long as royalties remain at a perceived low level, Spotify and other streaming services such as Apple will face attempts to manipulate the system. Indeed,
it is not the first time Spotify has faced such issues. In 2014, Michigan funk band Vulfpeck released their Sleepify album consisting of ten songs of silence which their fans streamed on repeat while they slept. The album earned the band in the region of $20,000 in royalties before Spotify took it down,
citing violations of their policies.

There is, in short, no obvious solution to the problem of how an artist can be guaranteed a fair reward from legitimate use
of their work in an online environment which, unfortunately, makes piracy too easy. As for Ohm and Sport, while their stunt may have been short lived, it has at least put the issue of fair reward for artists in the mainstream media spotlight. SJ

Hayley Devlin and Martin Ochs, pictured, are associates at Hamlins

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