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Bad Beat: Iowa Gambling Probe Allegedly Violated Student Athletes’ Constitutional Rights with Warrantless Geofence

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By: Sam William Kuper

“I hope all of these athletes at Iowa (UI) and Iowa State (ISU) take the State of Iowa to the cleaners.” UI men’s wrestling coach Tom Brands did not mince words describing the recent fallout from actions taken by the Iowa Division of Criminal Investigation (DCI) against student athletes. Last year, over a dozen student athletes and students at UI and ISU were criminally charged and some were suspended by the NCAA under suspicion of illegal sports gambling. However, a recent motion by defendant Isaiah Lee, a former ISU football player, alleges that the  charges were a result of an unconstitutional “warrantless search.”

Initial Investigation

Back in May of 2023, the DCI initiated an investigation of UI and ISU student athletes suspected of sports gambling in violation of state and NCAA rules. 25 current or former UI and ISU athletes and student managers were charged because of the investigation. Many for “tampering with records”—an aggravated misdemeanor that carries a maximum sentence of up to two years in prison—for allegedly falsifying personal electronic sports wagering records by utilizing the accounts of others to place sports bets. 16 pleaded guilty, with most pleading guilty to the lesser charge of underage gambling. Some of those charged were subsequently suspended by the NCAA, with different punishments depending on whether their wagers were on their own games or that of other sports or schools. For example, Isaiah Lee faced permanent ineligibility for placing a bet against his own team in a game where ISU beat Texas 30-7.

Alleged “Warrantless Search”

Isaiah Lee’s January 22nd Motion to Compel outlines his version of the facts. First, it is important to understand that gambling companies such as FanDuel and DraftKings must verify the location of their mobile users to make sure they are in a jurisdiction where sports gambling is legal. They do so via the company GeoComply, who act as the “custodians of data and processing” on behalf of their customers.

In December of 2022, Special DCI Agent Brian Sanger was given access to GeoComply’s data visualization and data analytics tool, Kibana. He used the software tool to place a “Geofence”—a virtual fence on a desired geographic area that reveals data of users within that area—around an athletic facility at UI where access is restricted to athletes, coaches, and support personnel. After he found gambling apps were opened inside the geofence, he requested subpoenas to obtain identifying account and bet information—leading to criminal charges for the student athletes.

According to the motion, Sanger did not remember why he initiated the search, but that he was “concerned about things such as people infiltrating Iowa’s sports team to gain insider information or match fixing.” However, he apparently did so without “warrant[s], tips, complaints, or evidence that illegal gambling was occurring.” The purpose of the discovery motion is to compel the State to disclose the circumstances and communications surrounding how and why Sanger and the DCI came to be in use of Kibana, and the types of searches he performed with it. For context, GeoComply’s website states they only comply with data requests from law enforcement if it is “legally binding and valid.”

What is a Fourth Amendment regulated search?

The Fourth Amendment of the U.S. Constitution protects people from unreasonable searches and seizures by government actors (like Sanger). The modern “reasonable expectation of privacy” or “REP” test as to whether Fourth Amendment protections apply was stated in Justice Harlan’s concurrence in Katz v. United States (1967): (1) the person must have exhibited an actual (subjective) expectation of privacy; and (2) that expectation must be one that society is prepared to recognize as “reasonable.” If these requirements are met, then the Fourth Amendment applies and the government needs a warrant based on probable cause to search.

However, under the “third-party exposure doctrine,” a person has no legitimate expectation of privacy in what they knowingly expose to the public or third parties. For example, the Supreme Court has held that there is no REP in garbage left on the curb of your home for pickup. But this standard has been heavily controversial in the digital age, as modern consumers often “reveal a great deal of information about themselves to third parties”—such as Google, Facebook, and their cell phone providers. In the landmark case Carpenter v. United States (2018) a 5-4 court declined to extend this doctrine to tracking cell-site location information for longer than seven days—suggesting that users have a reasonable expectation of privacy in their location history despite its disclosure to parties like Google. In addition, the court held in Kyllo v. United States (2001) that “[w]here . . . the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” There, the government unconstitutionally used a thermal imaging device to scan the defendant’s home for heaters used in growing marijuana without a warrant. 

Did the student athletes have a REP?

The question of whether student athletes like Isaiah Lee are protected by the Fourth Amendment is complicated. While the first prong of the REP test is uncontroversially met, the second prong, along with the third-party exposure doctrine, raises many questions.

For example, what kind of location data was used? GeoComply’s website says they collect GPS, GSM, Wi-Fi, and IP Address data from the user’s device to verify location accuracy. Many universities, like UW, have a policy of turning over evidence of illegal activities on their network as soon as possible after detection. Thus, one would likely not have a REP of illegal activities while on UW’s network (however, UI does appear to have a greater level of privacy protection). But if, by chance, GeoComply only used GPS data, and the students were using solely their cellular network to access the gambling applications, there would likely be a stronger argument in favor of a REP.

With the alleged facts we have as of now, this case resembles Kyllo. The government used “a device that is not in general public use” (geofence software Kibana) “to explore details of the home that would previously have been unknowable without physical intrusion” (whether mobile phones in dorms and athletics facilities accessed gambling apps) without a warrant supported by probable cause. The debate is whether a public school’s dorms and athletics facilities should carry the same level of protection as a home.

What would be the remedy?

If the court finds Sanger’s use of the geofence software to be unconstitutional, the remedy would be the “exclusionary rule.” This would prevent the government from using the evidence gathered, along with any evidence gathered because of the original evidence (such as the identifying account information gathered because of the original geofence) in criminal prosecution. Thus, all the currently pending UI and ISU cases would likely be dismissed. But could the students then bring a civil action against Sanger under 42 U.S.C. 1983 for compensatory damages (such as lost wages from being suspended by the NCAA)? That is an entirely different question.

Sand Trap: The Future of the PGA Tour’s Nonprofit Status

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By: Sam William Kuper

“Saudi Arabia’s sovereign wealth fund” is not a collection of words typically linked to tax-exempt nonprofits. However, that is exactly who stands to benefit from the century-old 501(c)6 Internal Revenue Code when the PGA Tour and LIV Golf complete their tentative agreement to merge in 2024. But is this merger and the PGA Tour’s planned continued use of its tax exemption as necessarily bad—or even evil—as many politicians are saying they will be?

Money Talks

Led by Chairman Crown Prince Mohammed Bin Salman (de facto leader of Saudi Arabia) and Governor Yassir Al-Rumayyan (former chairman of Saudi Arabia’s national oil company, Aramco), Saudi Arabia’s Public Investment Fund (“PIF”) has over $700 billion USD in assets and is seen as a cornerstone for the development of Saudi Arabia’s Vision 2030 project. Starting in 2014, PIF began investing and reaching beyond Saudi Arabia’s borders to extend its influence and investment opportunities. From stakes in Silicon Valley sweethearts Uber and WeWork(oof) to video game icons Electronic Arts and Activision Blizzard, PIF has become an investment hegemon. Its next goal? Dominating international sports.

Coined “sportswashing,” PIF has used its immense wealth to insert itself into the world’s most popular sports in an attempt to bolster its reputation and hide from Saudi Arabia’s awful human rights record. They bought a middling Premier League soccer team and infused it with cash. They backed Formula One races in Saudi Arabia, headlined by post-race concerts from Travis Scott, Charlie Puth, and Calvin Harris. PIF’s crown jewel, however, was its introduction of LIV Golf in October of 2021.

(Don’t) Pay for Play

For the better part of a century, the PGA Tour has been the preeminent golf league in the world. In 2021, it hosted 113 tournaments in 36 U.S. states and 10 countries, with about 200 golfers competing for $765 million in prize money. It generated over $1.59 billion in revenue and paid executives over $30 million—with Commissioner Jay Monahan raking in $13 million. The catch? They have been a 501 (c)6 tax-exempt nonprofit since 1977.

Initially enacted within the 1913 Tariff Act, 501(c)6 organizations (in comparison to 501(c)3) are organizations that share a common business interest. Their purpose is to promote that interest for the benefit of their members, and “not to engage in a regular business of a kind ordinarily carried on for profit.” In return, they must publicly file a 990 form disclosing their finances—including their sources of funding, charitable donations, and payments to executives.

The PGA Tour was not alone in claiming this exception amongst its peers. In 1966, the Tariff Act was amended to include “football leagues” when the National Football League (NFL) merged with a competitor. Major League Baseball (MLB) and the National Hockey League (NHL) also claimed nonprofit status in the decades following. But while the MLB, NHL, and NFL have all discarded their non-profit status in recent years, the PGA Tour has remained steadfast—mostly because their players are individual contractors and not member teams who make their own profits from ticket sales, merchandise, etc.

By co-sponsoring tournaments with 501(c)3 charities (such as the FedeEx St. Jude Classic), the PGA Tour provides a platform for raising money. However, a 2013 ESPN report flamed the PGA Tour for donating just 16% of its revenue from tournaments on average to charities—the industry standard is 65%—and in one case, caused a charity to lose money.

Pitching the Wedge

Documents prepared for PIF by Mckinsey & Company—known to hold authoritarian governments as clients—advised that LIV needed to lure the top 12 players in the world from the PGA Tour to be profitable. They managed four. Nicknamed “Project Wedge,” LIV’s launch was met with expected criticism. Signing stars like Phil Michelson, Dustin Johnson, and Bryson DeChambeau to massive contracts, the PGA immediately banned them from future Tour events. Commissioner Monahan publicly admonished these players, saying that he “would ask any player that has left, or any player that would consider leaving, ‘have you ever had to apologize for being a member of the PGA Tour?’” In its first season, LIV spent $784 million on 8 events. Their revenue was “virtually zero.”

But despite LIV’s flop, they persisted—and the golf world was thrown into further chaos. The 11 banned golfers sued the PGA Tour for antitrust violations and the PGA counterclaimed for tortious interference. The Justice Department launched its own antitrust investigation into professional golf. But in May of 2023, over breakfast near Palazzo Ducale in Venice, Monahan and Al-Rumayyan came to terms with what, in hindsight, was likely inevitable.

Big Beautiful Deal

The announced agreement, described by former President Trump as “big, beautiful, and glamourous,” would combine the European Tour, LIV Golf, and the PGA Tour into one, new for-profit entity that would control the PGA’s commercial rights. The PGA Tour would retain its nonprofit status and control over how tournaments are played. LIV would reserve the exclusive right to invest in the company. Al-Ramyan would be the Chairman. All lawsuits would be dropped. Almost immediately, two Senate committees launched investigations into the merger so they could assess the “risks associated with a foreign government’s investment in American cultural institutions, and the implications of this planned agreement on professional golf in the United States going forward.”

“Golf is a sport in which players call penalties on themselves, whether an infraction is visible to others or not” – PGA Tour mission statement

“Any hypocrisy I have to own.” Jay Monahan, in walking back his initial comments about players leaving for LIV, reiterated that he felt like the merger was best for golf. But it is without a doubt problematic. From Saudi Arabia’s connection to 9/11 to the 2018 killing of Washington Post journalist Jamaal Kashoggi, there is no good way to frame Saudi involvement in American sport.

But here are the facts. The PGA Tour has raised $3.6 billion for charitable donations since 1938, and $1.6 billion since 2014. In 2021, it generated $173 million, or about 12% of total revenue—just 8 million away from cracking the top 100 of the most charitable organizations in the U.S. The NFL Foundation, in contrast, gave away $70 million in 2022, or about .5% of the NFL’s total revenue. Patagonia, who was widely praised for shifting ownership to a nonprofit and dedicating 100% of its profits to environmental causes, still gives away only about 6.6% of its revenue.

We still do not know much about the details of the merger or the future of the PGA Tour as a nonprofit. But if the PGA Tour either decides or is forced to give up its nonprofit status, it will no longer be required to publicly disclose its finances. With Al-Rumayyan serving as the chairman for the new joint entity, and PIF’s reputation for a lack of transparency, this would likely not be an optimal outcome.

Saudi Arabian investment in American culture is not coming—it is already here. But its benefits here of providing consistent wages for all professional golfers, making the game more available across the globe, and ultimately raising more money for charities, may be worth it. We should push for clarity, disclosure, and charitable giving when we can, in whatever form that may take.

Plugging-in Your EV? More Like Plugging-in Your Data.

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NREL,-owned electric vehicles (EVs) below solar by U.S. Department of Energy is licensed under CC-CC0 1.0

By: Caroline Dolan

As global warming and ecological degradation progress, sustainable technology and infrastructure is being implemented to remediate and prevent aggravation. However, electric vehicles (EVs), which are an effective way to curb carbon emissions and boost green efforts, pose a unique set of privacy risks every time we plug-in.

The data transaction: Plugging-in

EVs are dependent on EV chargers and for the majority who do not have the capacity to charge at home, public chargers are a necessity. Public EV chargers are essentially an Internet of Things (IoT) device that facilitate the transaction of data for kilowatts. Information involving pricing, session date, time, duration, and power patterns is collected and sent to the operator’s network. Furthermore, most chargers are affiliated with a mobile-app or use a radio-frequency identification card (RFID) implicating your phone as another data source sharing payment information, names, emails, IP addresses, and internet history. In order for an app to make the consumer experience more convenient and recommend the nearest charger, location identification is necessary. However, Certified Information Privacy Professionals have reported how this data can be used to pinpoint your location and predict your typical driving route. 

Sharing and collecting this information can make life a lot more convenient and does not seem to pose any imminent risks of harm. However, every public charger is connected to a grid and whether it is a closed or open network, there is always a risk of ransomware attacks, ID fraud, and grid damage. The Cybersecurity and Infrastructure Security Agency defines ransomware as “a form of malware designed to encrypt files on a device, rendering any files and the systems that rely on them unusable. Malicious actors then demand ransom in exchange for decryption.” As described by privacy professionals, closed networks relate to a certain set of manufacturers who have discretion and unrestricted authority to use the data and create profiles; open networks tether multiple manufacturers which decreases each manufacturer’s control but gives more stakeholders access increasing your data’s vulnerability. In other words, while there is not an imminent risk of harm, there is a perpetual risk.

An EV economy

As the Wall Street Journal reported, “Modern vehicles are effectively connected computers on wheels. They’re able to collect a wealth of information via built in apps, sensors, and cameras, which can monitor people both inside and near the vehicle.”

Whether the data originates from the user’s personal device connected to the EV or solely through the charging equipment, the data is ripe for hackers, car manufacturers, insurance companies, and emergency service providers. While such data can help urban planners determine the optimal areas for development and economic profit, it can also inform insurance companies on how to set rates based on driving risk and behavior. More importantly, the Wall Street Journal has recognized that if data brokers obtain and sell the data, even with personal information redacted, movements and habits are individualistic and may provide insight into one’s identity.

Well-intentioned green policy may be getting ahead of itself

President Biden’s goal of boosting U.S. EV production is being achieved through his Made-in-America EV charging network initiative which is supported by the Department of Transportation’s National Electric Vehicle Infrastructure (NEVI) program. NEVI is distributing $5 billion into various EV programs to create a coast-to-coast network of EV chargers and electrify the highway system. However, these good intentions may be putting the cart before the horse since privacy risks of EVs have yet to be adequately and uniformly regulated.

Notably, the Federal Highway Administration (FHWA) has imposed a set of requirements on NEVI fund recipients stated in its “final rule.” The final rule consists of network connectivity requirements that ensure secure payment processing and minimize the amount of personal information that companies may retain. While these efforts seek to safeguard data and promote transparency, the final rule essentially requires merely “appropriate” data protection and gives states the discretion to determine the means. 

California is one state that is addressing the privacy concerns raised by the EV boom. California’s newly approved Electric Vehicle Infrastructure Deployment Plan cites the state’s Senate Bill 327 which requires a manufacturer of a “connected device” to equip the device with reasonable security features based on the nature and function of the device. From a legal perspective, the reference to SB-327 indicates that EV chargers may constitute a “connected device” and therefore warrant reasonable and appropriate security features and protection. 

However, state regulations are not an adequate shield from the broad destruction of a cyberattack. Therefore, some EV charger companies like ChargePoint have adopted internal regulations and earned certifications from the International Organization for Standardization (ISO) based on its comprehensive  information security and cyber-risk management. ChargePoint is a predominant U.S. company that supplies EV charging stations across North America as well as Europe and is therefore subject to Europe’s General Data Protection Regulation (GDPR). The GDPR controls the collection, use, and storage of personal data as well as the conduct of non-EU companies that possess the data of EU residents and citizens. While it seems unlikely that the U.S. will implement a federal law akin to the GDPR, California and ChargePoint may prompt other states and companies to implement regulations that supplement FHWA’s final rule.

Will supporting EVs come at the cost of our privacy?

While it is difficult to encourage people to undertake the risks posed by EVs, even for the sake of curbing carbon emissions; the Earth is a finite resource and without it our privacy is moot. Therefore, people should not be discouraged from purchasing an EV or plugging-into a public charger. Rather, the government and individuals should be compelled to hold corporations accountable for how data is stored and used so that we may plug-in without fear. As the effects of global warming become more apparent, embracing corporate accountability and privacy protection is critical in order to keep up with the EV boom and conserve the Earth.

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

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Photo by Dazzle Jam on Pexels.com

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.