Consumer Digital Privacy 101: Simple Steps for a Safer Digital Life

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By: Perla Khattar *

In an era characterized by ubiquitous data collection and increasingly sophisticated digital technologies, privacy has emerged as a crucial concern for consumers worldwide. As personal information becomes more vulnerable to exploitation, the importance of privacy management cannot be overstated. While regulatory measures and institutional safeguards such as privacy by design play an essential role in protecting user data, the responsibility of safeguarding privacy ultimately rests in the hands of individuals themselves in the absence of effective regulation.

While it is evident that comprehensive legal frameworks and industry practices are necessary to ensure the responsible handling of personal data, the limitations of such measures have become increasingly apparent. The pace of technological advancement often outstrips the capacity of regulations to keep up, leaving gaps in protection. Moreover, the sheer volume of data generated and the diversity of platforms and services utilized by individuals make it challenging for regulations to cover every aspect of privacy. This blog post aims to provide practical tips to help consumers establish new habits and make small changes to enhance their privacy protection.

These tips do not provide foolproof protection against sophisticated threats, but adopting privacy-conscious habits can bolster individual privacy resilience and help mitigate risks. The primary objective of this blog is to equip individuals with beginner-level tips for privacy management. This newfound awareness can help individuals make informed decisions about how their personal information is collected, used, and shared, and can prevent them from falling victim to scams or other forms of exploitation. By being aware of their data privacy rights, consumers can also hold companies and organizations accountable for how they handle their personal information, and can help to promote a culture of greater transparency and accountability in the handling of sensitive data. This blog aims to bridge the gap between theoretical privacy principles and practical implementation, empowering everyday consumers to navigate the digital landscape with greater confidence and privacy consciousness.

1.     Understanding The Alphabet Empire

It is widely believed that Google has engaged in shady privacy practices in the past. For example, the company has been criticized for collecting and using biometric personal information from its users without their knowledge or consent. Some have also criticized Google for not being transparent enough about its data collection and usage practices, and for not providing users with adequate control over their personal information. Overall, there is a perception that Google does not prioritize the privacy of its users, and that it is more focused on maximizing its own profits.

An Alternative to Google Docs

Google servers can see everything that is typed in the Google documents, simply because consumer’s work and data is not end-to-end encrypted. Google isn’t particularly transparent about what it is doing with the collected data, but it is assumed that the company is scanning and analyzing the contents for marketing purposes.

However, consumers wishing to collaborate in real time on documents can do so privately: platforms like Cryptpad and Skiff are similar to Google docs but are end-to-end encrypted, making it impossible for the company to access your work in progress. 

Search Data Collection

Google keeps a database on every single user, where every search query is added. Then, specific information is extrapolated like location, medical concerns or political views, and sexual preferences for marketing. Google collects everything users search for, and everything they decide not to search for: the moment the user types in the search bar, and gets suggestions for common questions asked, everything that was typed, regardless of whether the user pushed “enter” or not, is sent to the Google database.

This information is used to be broadcasted to thousands of companies in auctions where advertisers and data brokers are bidding to purchase data. Additionally, Google uses this information to target consumers with specific search results, or even manipulate or sensor results.

To avoid all this, consumers can switch to Startpage, a company that gives users Google search results without any of the trackers, leading to the ability of viewing proxy websites without revealing any personal information.

De-Googling a Phone

First, replace Google applications with an alternative: OSMAnd instead of Google Maps, New Pipe and Odysee instead of Youtube, Brave Browser instead of Chrome. Them, download applications from F-Droid or Aurora to avoid connecting to the Google Play Store. Finally, use an operating system other than Android, such as Graphene or Lineage.

2.     Recognizing The Importance of Virtual Private Networks

Some Virtual Private Networks (“VPN”) record consumer’s unencrypted information and unencrypted internet activity to sell it to third parties. Some other VPNs log consumer’s IP address and activity. Other VPNs demand access to photos, nearby Wi-Fi networks, and nearby Bluetooth devices in order to gather more data on the user.

In fact, 105 of the most popular VPNs are owned by just 24 companies. When searching for a VPN, consumers should look for products with no logging or low logging guarantees with paramount encryption, and choose the jurisdiction they’re connecting to carefully: in Switzerland, for example, the government can’t compel VPN providers to log IP addresses.

Here are some private VPNs that do not sell any information and that protect user’s information from Internet Service Providers: The Freedom of the Press Foundation’s shortlist includes Mullvad and ProtonVpn.

3.     Switching Browsers and Search Engines

Browsers and search engines often collect personal information from consumers in order to improve their services and provide more personalized experiences. This data can include information such as the consumer’s location, search history, and browsing habits. This data is typically collected through the use of cookies and other tracking technologies, which are small pieces of data that are stored on the consumer’s device and can be accessed by the browser or search engine. This data is often used to target advertising, to improve search results, and to develop new features and services. Overall, the collection of personal data by browsers and search engines can be both beneficial and potentially invasive, depending on how it is used and who has access to it.

General Idea

A browser is comparable to a car that takes consumers to their destination. Famous examples of browsers are: Chrome, Brave, and Firefox. A search engine, however, is comparable to the map that lets consumers arrive to the final destination, because search engines index all the sites on the internet. Famous examples of search engines are: Google Search, Bing, Yahoo.

Some companies have both a browser and a search engine: Brave has Brave browser and Brave Search Engine. DuckDuckGo which is a popular search engine now has a browser.

Consumers are free to choose which search engine to use in their browser URL bar: someone that uses Chrome, might set their search engine to Google. More private options for browsers and search engines include Brave Browser in combination with Brave Search.

Choosing the Best Browser

Brave has great built in privacy, built-in ad blocker and it prevents websites from fingerprinting the machine; these securities are also enabled by default.

Firefox is great for users wanting to customize their settings, because it has great extensions like the Facebook container that stops Facebook from tracking consumers. However, users wishing to use Firefox need to configure the privacy settings to their linking, as it is not a default in the product.

Tor is the ultimate private browser since it bounces the traffic off the browser to different nodes before reaching the final destination so that no single node knows both who originated the traffic and the final destination. However, although Tor is the go-to browser for anonymity, it makes browsing significantly slower.

Bounce Tracking and Debouncing

Sometimes, before taking consumers to a specific website, computers will bounce the user to several tracking websites before reaching the needed destination. This is because companies are getting sneaky in the way they track consumers.

When consumers are loading a website, they can sometimes see different URLs appearing on the bottom left of the page. Before being taken to the intended website, users are being bounced through tracking websites that collect personal information. This phenomenon is called bounce tracking.

Stopping this can be done in two ways: First, debouncing: some websites can learn which websites consumers are intending to visit, and therefore can skip over all the tracking websites, taking users straight to their destination. Brave has the only version that ships in the browser. Second, unlinkable bouncing: some websites will visit these tracking domains in a throw-away profile to decrease what the tracking site can learn about the consumer.

Browser Plugins

Browser plugins are pretty dangerous because they are able to capture passwords, credit card details, track browsing, insert advertisements and redirect traffic. Even an extension that does only minor things like checking for discounts, may require access to everything users do in browsers to function. Companies that provide browser plugins are not necessarily spying on users, but they can actually do so if they decide to. Sometimes these extensions are sold to shady companies, or hijacked by hackers.

The solution is to avoid installing plugins, and to delete the ones that are not in use. And if consumers decide to use one, they should absolutely trust the company before using the plugin and check for the permissions that are being granted. If a company doesn’t need access to everything a consumer is doing, then permissions need to be restricted to the strict necessary.

4.     Adopting Better Password Safety

Password safety is extremely important for protecting privacy. This is because a strong password is often the first line of defense against cyber-attacks. If a hacker is able to guess or gain access to a person’s password, they can potentially gain access to that person’s sensitive information, such as financial information, personal documents, and more. Furthermore, if a person uses the same password for multiple accounts, a hacker who gains access to one password can potentially gain access to all of that person’s accounts, which can be even more devastating. Therefore, it is crucial for people to use strong, unique passwords for each of their accounts, and to regularly update those passwords to ensure the continued protection of their privacy.

Shady Password Managers

Most commercial password managers have key loggers that are used to scan what consumers type. Therefore, password managers need to be reputable, ideally open source or be checked by third party audits. All passwords should be encrypted on the device itself, and encrypted at rest so that the service provider can never get access to consumer’s passwords.

Password Configuration

Simple passwords like “password” or “12345678” are one of the easiest ways to get a consumer’s account hacked. Passwords should be unique and randomly generated, with a different password for every account.

With a good and trusted password manager, users can remember only one secure master password and the application will randomly generate and store all the rest of them to make sure that inevitable data breaches don’t put all your accounts at risk.

Two-Factor Authentication

Consumers should always add two-factor authentication whenever possible, whether its required or not, because it makes a huge difference when it comes to protecting accounts.

Wherever supported, it is best to use a security key like the YubiKey. The text option might be easier, but it is less safe because hackers are notorious for performing “SIM Swaps” where they get the code routed to their device instead of the consumer’s. The authenticator applications like Okta are better than text, but the problem with authenticator applications is that it’s easier to steal the private key off the phone than off the YubiKey.

5.     Outsmarting Wi-Fi

When Wi-Fi is tuned on, the phone is constantly sending Wi-Fi probe requests, which are basically little packets of information that contain details about the phone. This information is broadcasted publicly for anyone to see. Essentially, the phone is going around announcing to any nearby Wi-Fi network that the phone exists.

Turning the Wi-Fi off when not in use is a great idea. But pressing the turn off Wi-Fi button doesn’t always mean that the action was successfully executed. If consumers have an android and they turn off their Wi-Fi, they won’t be connecting to a Wi-Fi network anymore, but their phone will still send out Wi-Fi probe requests. An additional step would be to switch off the “Wi-Fi scanning” in the settings. And on iOS, consumers can’t just toggle Wi-Fi off in the control center, it has to be done in the settings.

Final Thoughts

While it may be tempting to dismiss these beginner privacy tips as insignificant in the grand scheme of things, they actually possess the power to usher in a more sophisticated approach to privacy. True, they may not completely revolutionize consumers’ lives overnight, but they provide a solid foundation for living a privacy-conscious existence in today’s digital landscape.

By implementing these tips, consumers take proactive steps towards protecting their personal information, maintaining control over their digital footprint, and mitigating the risks associated with online vulnerabilities. Each small action, such as using a password manager, or encrypting communications contributes to a larger framework of privacy-conscious behavior. In the face of growing privacy concerns, it is crucial to remember that change begins at an individual level in the absence of legislation. By embracing these beginner privacy tips, consumers actively participate in a larger movement towards a privacy-conscious society, where our personal information remains secure and our digital lives remain private.

*Perla Khattar is an Attorney at the Beirut Bar Association & J.S.D. Candidate 2027, Notre Dame Law School.

Do Clean Zones Muddy Commercial Speech?

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By: Kelton McLeod

The city of Seattle, Washington has been chosen to host  the 2023 MLB All-Star Week and to act as one of the host cities for the 2026 FIFA World Cup. While these are fantastic sporting events that will bring many tourists and spectators to the Emerald City, the local government will need to consider the potential ramifications of the “clean zone” policies frequently required of host cities.

Clean zones are a requirement that certain areas within city limits be free of marketing signs, activations, or other promotional materials. FIFA, the Olympic Committee, and the MLB all implement clean zone requirements for major events with massive, sponsored advertising.  Clean zones ensure that no advertising (or branding) is visible within the venue or around the event unless associated with an official sponsor. Clean zones are set to protect any deals already in place, as sponsors will pay massive amounts in order to be “The Official” product of an event like the Olympics and therefore want to ensure that the “honor” they pay for is not shared. However, these clean zone policies raise concerns about potential infringement on the free speech and commercial rights of the businesses who are outside the scope of these deals.

The First Amendment states that the government “shall make no law . . . abridging the freedom of speech.” In Virginia State Board of Pharmacy, this protection was extended to “commercial speech,” such as advertising. But, the Supreme Court tempered this extension, by stating that commercial speech is still subject to government regulation and is not as expansive as other free speech protections. Since Central Hudson Gas and Electric Corp. v. Public Service Commission, courts have applied a four-part test in resolving First Amendment challenges to commercial speech regulations. This test asks whether (1) the speech being restricted concerns lawful activity and is not misleading, (2) the asserted governmental interest is substantial, (3) the regulation directly advances that governmental interest, and (4) the regulation is not more extensive than necessary to serve that interest. There are no first amendment concerns if the type of speech being restricted is unlawful or misleading, but legal and non-misleading speech must consider other factors of the test. 

In the case of clean zones surrounding major sporting events, the speech being restricted is lawful marketing or other promotional materials, meaning an analysis of the other factors is required. The governmental interest in these cases are substantial because clean zones are often a requirement to bring any event, and all its related revenues, to a host city. Further, clean zones may be implemented to protect public safety, prevent ambush marketing, and promote the integrity of the event. These are arguably substantial governmental interests that are advanced by clean zone regulation and therefore may justify the restriction of commercial speech within certain areas. However, the city still cannot be overly broad in its restrictions. 

Seattle will need to consider the rights of businesses to engage in commercial speech. If local businesses in the designated clean zones are not able to engage in any commercial speech during the event, they could suffer from significant financial losses. To protect these commercial rights, the city will need to ensure that the clean zone regulation put in place is not too extensive, either in scope or proximity, to any stadium in use. The right scope of such regulations is highly fact dependent on the terms of individual clean zones, but if the regulations remain no more extensive than necessary, the clean zones should remain constitutionally sound.

As Seattle welcome’s visitors during the All-Star Week and World Cup matches, it will need to ensure that any policies are not overly broad nor cover more of any area than is necessary to serve the intended purpose of protecting the interests of the event organizers.

Monster Energy vs. Everyone: Why is a drink company challenging video games for using the word “monster”?

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By: Perry Maybrown

Have you ever been playing Monster Hunter and thought, “Huh, this must be related to Monster Energy.” While I personally have never faced this conundrum, it’s a scenario that Monster Energy has been very worried about. So much so, that for the past few years they have been targeting a wide range of industries to protect their trademark of the word “monster.” Two notable attacks that have been revived by the media were against Pokémon for “Pocket Monster” and Capcom for their videogame franchise “Monster Hunter.” Both complaints were filed in Japan and promptly dismissed. 

This has not deterred the energy drink company in the slightest however, as they have recently sent a cease and desist letter to independent development studio Glowstick Entertainment for their game Dark Deception: Monsters & Mortals. In their letter, Monster Energy requests that Glowstick never again attempt to trademark something with the word “Monster,” or have any trademarks that could at all resemble their own. They go on to request that the logo of the game be modified and sent to them for approval. Monster asked Glowstick to refrain from using the colors green, white, and black (a task that is especially daunting considering the Glowstick logo is green on a black background). Furthermore, Monster required Glow Stick not emphasize the word “monster” more than any other in the title of their game.

Furious with these demands, founder and CEO of the studio, Vincent Livings, took to Twitter to air his complaints and share the cease and desist letter. This has led to extreme reactions from the Twitter sphere and news outlets which have shared the story. 

Are these reactions warranted? Or is Monster simply protecting its rightful trademark? 

A trademark can be composed of a variety of elements: words, images, sounds, even colors can be used as a way to denote a specific brand or product. What a trademark is not, is complete ownership of a single word, symbol or color in all situations. Rather, a trademark only protects the use of your mark in connection with similar goods or services. Boiling it down to the most basic level, infringement occurs when a consumer may become confused between two marks. This is referred to as the likelihood of confusion. 

The courts have determined a test and list of factors that they weigh when deciding infringement. On the west coast (9th Circuit) these are referred to as the Sleekcraft Factors. The factors are as follows:

(1) Strength or Weakness of the Plaintiff’s Mark. 

(2) Defendant’s Use of the Mark

(4) Actual Confusion.  

(5) Defendant’s Intent.  

(6) Marketing/Advertising Channels. 

(7) Consumer’s Degree of Care.  

(8) Product Line Expansion. 

(9) Other Factors.

On the east coast they are the polaroid factors, which are similar to Sleekcraft: 

(1) the strength of the plaintiff’s mark; 

(2) the degree of similarity between the two marks; 

(3) the proximity of the products; 

(4) the likelihood that the owner will bridge the gap; 

(5) evidence of actual confusion; (6) defendant’s good faith in adopting the mark; 

(7) the quality of defendant’s product; and 

(8) the sophistication of the consumers. will likely cause confusion with plaintiff’s mark.

While a court may review all of these factors to determine the likelihood of confusion, there are several that are most pivotal when reviewing the scant facts we know for Monster Energy. To start with, product line expansion refers to whether the goods and services are related and the likelihood of one company expanding into the others business. This again is to help figure out “likelihood of confusion” on the part of the consumers. For example, it’s easier to become confused between two purses both made by a company called Gucci, however consumers are less likely to relate the two if it’s a sink maker that goes by that name. 

In the case of Monster,it is critical to ask, how likely is a beverage manufacturer to enter the video game market? Not only are the two products completely unrelated, the video game industry is difficult to break into on a good day. 

Furthermore,  the strength of the mark is evaluated on a sliding scale, with the weakest being what is called a “generic mark.” Generic words do not receive trademark protection because everyone needs to use them to describe their business. For example, if I created a coffee company called Coffee Company that would be generic. Imagine if I could now prevent all other coffee companies from using the word “coffee.” That would be wild! 

Next up is determining how descriptive the trademark is. Basically, is your trademark just describing the thing you are selling? These types of trademarks usually do not receive protection, but can in certain instances. 

The strongest marks are fanciful, arbitrary or suggestive. A fanciful mark is the best one you can get from a legal standpoint, because it’s a word you just made up (think Pepsi, Kodak etc.). A suggestive mark is one that kind of sounds like the product (like Netflix). And finally is arbitrary, which is just a random word that is used on a product that may have meaning elsewhere but isn’t directly descriptive of the product itself (Apple Computers is a great example of this). The Monster Energy mark would likely either be considered arbitrary or suggestive. Maybe suggestive because its name implies that you get monstrous, or huge amounts of energy from it. Arbitrary perhaps because the monster seems unrelated to the beverage. 

Here is the issue for Monster; while it is arbitrary for their product in particular, the word is descriptive when it comes to the video games they are challenging. Take for example Monster Hunter, which is a game series where you… hunt monsters. Or Pocket Monsters, where you collect monsters, you can fit in your pocket. At worst the word may be considered generic as it is used so ubiquitously throughout the industry to describe games and their contents. 

This is important because courts are unwilling to impose trademark protections for generic marks, because of how damaging it could be to the market. While descriptive marks may receive some kind of protection it’s a challenge that requires a large amount of work from the company that wishes to secure the trademark. Thanks to this, courts would be even more unwilling to find in Monster’s favor and force video game companies to stop using such a descriptive term. 

Conclusion

Like the saying goes, “with great power comes great responsibility.” While trademark owners do have rights to that mark, their power comes with responsibility  as they must defend their mark or risk losing it. In that sense, it seems logical that Monster is so zealously fighting to keep the word “monster” out of other companies’ mouths. On the other hand, this overkill method to attack any use of such a common word isn’t a great look for the company. 

At the end of the day, the decision of whether infringement exists is for the courts to decide. And it’s Monster’s choice to spend the money getting to that point, win or lose. We don’t have all the facts for either of these cases, and only know one side of the story, so it’s difficult to say if there are more factors that could play into this issue. But for now, it seems to be David vs Goliath. And the public is on David’s side.

The Music Industry Is Out of Tune: Women in Music Are Underpaid and Underrepresented

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By: Kyle Kennedy

In 2018, the principal flutist from the Boston Symphony Orchestra, Elizabeth Rowe, filed a lawsuit against her employer alleging gender bias because the male principal oboist of the orchestra made $70,000 more per year. This disparity of pay is a common trend among professional orchestras where men earn an average salary of $255,000 while women earn $202,000. Men fill 80% of the top-paying orchestra roles, and of the one-hundred conductors of major orchestras across America, only four are women. The gender-based disparity of pay is prevalent across the entertainment industry, as the median annual earnings for women in art are $45,156 while the median for men in art was $60,497. In 2018, the sister rock trio, Haim, recounted firing their agent because the male artist sharing their stage at a festival was paid ten times more.  Women are chronically underpaid and underrepresented in the music industry because its unique characteristics naturally foster gender-based discrimination while simultaneously making it extraordinarily difficult for plaintiffs to prove employment discrimination or harassment claims.

Women are chronically underrepresented in the music industry.

Women are chronically underrepresented in music compared to men. In 2019, USC Annenberg conducted a study analyzing the top 100 songs from 2012 to 2019. The data showed that only 17.1% of the Top 100 songs in 2018 featured women artists, compared to 22.7% in 2012 and 28.1% in 2016. In the range of years studied, the ratio of male to female artists was 3.6 to 1. Women were also more likely to work as individual artists with 31.5% of individual artists being women compared to only 4.6% of duos and 7.5% of bands featuring women. Women were especially underrepresented in creative roles making up only 21.7% of artists, 12.3% of songwriters, and 2.1% of producers. The ratio of male to female producers in the years analyzed was 47 to 1.  

Perhaps the best example of the underrepresentation of women in music is the gender gap in Grammy nominations. Winning a Grammy is the pinnacle of achievement in the music industry, and between 2013-2019 only 10.4% of the nominated artists were women. Grammy awards and nominations often carry substantial financial consequences, as these types of accomplishments lead to higher pay and more opportunities.

In addition to being underrepresented and underrecognized, women in the music industry face barriers to advancement because of their gender. 39% of the Annenberg respondents reported being stereotyped and sexualized by their male co-workers. Of 75 respondents who worked in the studio, 39% reported being objectified, 25% were the only women in the room, and 28% were dismissed. A 2020 study released by Annenberg surveyed 401 women creatives and found that “64% [named] sexual harassment and objectification “as a major challenge women face in the industry.” The inaugural ‘Women in the Mix’ study surveyed 1,600 women or gender-expansive people working in the music industry to identify trends in their shared experiences. The study demonstrated the prevalence of discrimination in the industry, as 77% of respondents said they were treated differently because of their gender and 56% believed their employment in music was affected by their gender. Women also tend to be overworked and underpaid, as 57% of the respondents hold two more jobs while 28% work over 40 hours a week. Despite this investment of time, 36% of respondents make less than $40,000 per year and 57% felt they should be further along in their career compared to non-performance artists working in music. Gender expansive artists face heightened discrimination and were twice as likely than artists who identified as women to make less than $40,000 per year.

The data and statistics clearly show that women have a harder time breaking into the music industry, are paid less than men, and are provided less opportunities for recognition or advancement.

The music industry is uniquely situated to foster gender discrimination.

         Women in the music industry face more severe gender-based discrimination because of the prevalence of relationship-based hiring, gender stereotypes, and the practice of underpaying inexperienced artists.

         The music industry has traditionally relied on informal hiring procedures based largely on personal relationships. It can be quite difficult for outsiders to get their foot in the door, and one female jazz musician reported that people would often hire their male friends over equally or more skilled women.  The Annenberg data showed that men are disproportionately placed in positions of power in the industry, and they hire men at a disproportionate rate. This ‘boys club’ mentality fosters the chronic underrepresentation of women in music.

         Women in the music industry also must battle against common stereotypes that are often used as poorly disguised gender discrimination. Women in music report being given work that is rooted in gender roles, such as “the cliché of women possessing good communication and “people’s skills”, and men traditionally being seen as the decision-makers and the assertive ones.” These stereotypes lead to the devaluation of women in the workplace because employers value “alleged natural skills” differently which impacts hiring decisions. These adverse decisions lead to wage gaps and “prestige gaps” as men are more often thrust into roles of importance. Additionally, women are often forced to work in uncomfortable or hostile work environments as 39% of the 2019 Annenberg respondents were sexualized, objectified, or stereotyped at work. Women already face tremendous barriers entering the music industry, which are only worsened by the prospect of facing harassment or mistreatment in the workplace every day.

         The music industry is known for underpaying inexperienced artists who still must “earn their stripes”, and the commonality of this practice allows employers to get away with blatant discrimination. Many artists report having to work for little or no pay upon entering the industry, and many said that once you are paid “nobody talks about how much.”  Women entering the industry often work for free or are underpaid for extended periods, and the normalization of this practice makes it even more difficult for women to break into the music industry.

It is difficult for artists to prove their employer discriminated against them.

   The difficulties in comparing various artists and the social norms of the music industry make it difficult for women to recover from employers who discriminate against them. Those who face gender-based compensation discrimination can sue under the Equal Pay Act or any applicable state law. Under the EPA, men and women in the workplace must be given equal pay for equal work. The jobs must be substantially equal, which is determined by the job content. However, it can be difficult for artists to demonstrate that two jobs are substantially the same in court, where they have the burden of proof as plaintiffs. Artists offer various skills and make various contributions to musical projects which can be hard to compare or objectively value.

Artists could also sue under Title VIII, the Age Discrimination Employment Act, and the Americans with Disabilities Act which prohibit compensation discrimination without requiring the jobs be substantially similar. There are certainly legal avenues to pursue claims, but the realities of the music industry make pursuing employment discrimination claims less appealing. The relationship-based, quid-pro-quo nature of the music industry discourages women who have been discriminated against from pursuing claims because of fear of retaliation from the industry. The common practice of underpaying newer employees makes it difficult to find explicit evidence of discrimination. In discrimination cases, courts will often look for the “smoking gun” showing intentional discrimination, which is a lot more difficult when employers can point to the tradition of grossly undercompensating new employees. Finally, the music industry is extremely competitive and young artists of all genders are incentivized to compete against each other by accepting lower pay or worse treatment from their employer. Women are already systematically mistreated in the music industry, and its ultra-competitive nature leads to normalizations of discrimination.  

The music industry must take better care of women in music.

Women are underpaid and under-represented in the music industry. The unique characteristics of the industry make gender discrimination more prevalent and more difficult to enjoin. Courts would have an easier time sorting through gender-based compensation discrimination for musicians or other artists by coming up with some standardized system of value analysis for musical contributions. While some underpaid women artists might still be undervalued by such a system, some relief is better than no relief. Additionally, the threat of relief might lead to much needed advancements in the industry itself. The music industry could experiment with more standardized compensation for artists and performers, higher wages for inexperienced workers, and some equitable system that opens opportunities outside of personal relationships. The music industry today is sadly out of tune and continues to discriminate against women through unequal pay and career advancements. The music industry should strive to shift its common practices to encourage equality, fairly compensate new artists, and deter workplace harassment and discrimination.

(A.I.) Drake, The Weeknd, and the Future of Music

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By: Melissa Torres

A new song titled “Heart on My Sleeve” went viral this month before being taken down by streaming services. The song racked up 600,000 Spotify streams, 275,000 YouTube views, and 15 million TikTok views in the two weeks it was available. 

Created by an anonymous TikTok user, @ghostwriter977, the song uses generative AI to mimic the voices of Drake and The Weeknd. The song also featured a signature tagline from music producer Metro Boomin. 

Generative AI is a technology that is gaining popularity because of its ability to generate realistic images, audio and text. However, concerns have been raised about its potential negative implications, particularly in the music industry, because of its impact on artists. 

Universal Music Group (UMG) caught wind of the song and had the original version removed from platforms due to copyright infringement. 

UMG, the label representing these artists, claims that the Metro Boomin producer tag at the beginning of the song is an unauthorized sample. YouTube spokesperson Jack Malon says, “We removed the video after receiving a valid copyright notification for a sample included in the video. Whether or not the video was generated using artificial intelligence does not impact our legal responsibility to provide a pathway for rights holders to remove content that allegedly infringes their copyrighted expression.”

While UMG was able to remove the song based on an unauthorized sample of the producer tagline, it still leaves the legal question surrounding the use of voices generated by AI unanswered. 

In “Heart on My Sleeve”, it is unclear exactly which elements of the song were created by the TikTok user. While the lyrics, instrumental beat, and melody may have been created by the individual, the vocals were created by AI. This creates a legal issue as the vocals sound like they’re from Drake and The Weeknd, but are not actually a direct copy of anything. 

These issues may be addressed by the courts for the first time, as initial lawsuits involving these technologies have been filed. In January, Andersen et. al. filed a class-action lawsuit raising copyright infringement claims. In the complaint, they assert that the defendants directly infringed the plaintiffs’ copyrights by using the plaintiffs’ works to train the models and by creating unauthorized derivative works and reproductions of the plaintiffs’ work in connection with the images generated using these tools.

While music labels argue that a license is required because the AI’s output is based on preexisting musical works, proponents for AI maintain that using such data falls under the fair use exception in copyright law. Under the four factors of fair use, advocates for AI claim the resulting works are transformative, meaning they do not create substantially similar works and have no impact on the market for the original musical work.

As of now, there are no regulations regarding what training data AI can and cannot use. Last March, the US Copyright Office released new guidance on how to register literary, musical, and artistic works made with AI. The new guidance states that copyright will be determined on a case-by-case basis based on how the AI tool operates and how it was used to create the final piece or work. 

In further attempts to protect artists, UMG urged all streaming services to block access from AI services that might be using the music on their platforms to train their algorithms. UMG claims that “the training of generative AI using our artists’ music…represents both a breach of our agreements and a violation of copyright law… as well as the availability of infringing content created with generative AI on DSPs…” 

Moreover, the Entertainment Industry Coalition announced the Human Artistry Campaign, in hopes to ensure AI technologies are developed and used in ways that support, rather than replace, human culture and artistry. Along with the campaign, the group outlined principles advocating AI best practices, emphasizing respect for artists, their work, and their personas; transparency; and adherence to existing law including copyright and intellectual property. 

Regardless, numerous AI-generated covers have gone viral on social media including Beyoncé’s “Cuff It” featuring Rihanna’s vocals and the Plain White T’s’ “Hey There Delilah” featuring Kanye West’s vocals. More recently, the musician Grimes recently shared her support toward AI-generated music, tweeting that she would split 50% royalties on any successful AI-generated song that uses her voice. “Feel free to use my voice without penalty,” she tweeted, “I think it’s cool to be fused [with] a machine and I like the idea of open sourcing all art and killing copyright.”

As UMG states, it “begs the question as to which side of history all stakeholders in the music ecosystem want to be on: the side of artists, fans and human creative expression, or on the side of deep fakes, fraud and denying artists their due compensation.”

While the music industry and lawyers scramble to address concerns presented by generative AI, it is clear that “this is just the beginning” as @ghostwriter977 ominously noted under the original TikTok posting of the song.