Unrolling the Unroll.me Conundrum

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TL;DR: The Unroll.me scenario highlights the need for more discussion on legal and TOS

Blowup

A couple weeks ago, NYT journalist Mike Isaac wrote a piece on Uber CEO Travis Kalanick that inadvertently gave legs to another story: Unroll.me. I’m not going to restate the facts of the backlash—you can go to multiple sources to read those. I will, however, point out something that I think was missing from the overall conversation, which I think is important for the tech community to assess as much as anything else about the story.

The exact implications of the backlash notwithstanding, it brings up two main points, both of which are connected, and one of which I’ve only seen any real discussion. In short, here’s why Unroll.me CEO Jojo Hedaya’s apology doesn’t solve the underlying problem:

  1. It placed all of the culpability on the Unroll.me team, and
  2. It presented “lack of TOS transparency” as the main problem, while the bigger problem as I see it is a lack of discussion and knowledge of TOS in general.

The first was a misstep because it painted Unroll.me as the villain in the narrative. It’s true: Unroll.me could have been much more transparent about their TOS practices, as plenty of people have already pointed out. In particular, Hunter Walk and Steve Sinofsky presented valid points on this in our tweet conversation. As Hunter pointed out, the company’s suggestion that users simply “Read the TOS” was at best insufficient and at worst callous. Steve also tweeted that trying to write an explanatory text of a contract (TOS) in plain English may well not hold up the same legally. Both are correct. But I also see something deeper.

The Precarious Balance

However, the full, unequivocal admission of guilt left Unroll.me holding the whole bag, while only a portion of any perceivable guilt actually lay with them. The cold reality of the entire situation is that the Terms of Service are there for a reason, and that reason isn’t just to take up space or peeve users when downloading a new app. It’s to protect and indemnify the company against any possible legal action; to assert that the company is in the right, and that some responsibility has to rest with the user.

Is the company always right? No. Is it always clear of indiscretions? Of course not (just look at Uber). But the point is that the TOS exists for a reason. And contrary to what many users might want to believe, that reason is not to please them or give them warm feelings inside. It’s to make sure that the company is legally protected.

But what about transparency? Is that not equally important?

The answer, more and more, is “yes,” it is important. But it’s also important that users don’t conflate transparency—of TOS, for example—with a lack of responsibility on their part.

Legal knowledge shouldn’t be seen as a dark art, and—companies’ TOS should be sufficiently clear so users understand and accept the terms outlined therein. It needn’t be a good/bad scenario—just one where all parties are clearly informed. In the context, the legal concept of “good faith” applies almost without question.

The Real Point

All of this leads up to the real point which should be central to everyone’s perspective: that the tech press and blogosphere should cover legal matters, especially those related to TOS, far more than they already do. I read countless articles and posts, and listen to numerous podcasts on fundraising, user-acquisition and retention, hiring, firing, going public, etc. But for all of that, I see only a handful of posts or podcasts where legal knowledge is discussed with as much vigor and depth as new funding rounds are. Sure, those posts and podcasts exist, but they don’t get tweeted nearly as much in the tech mainstream as others on the aforementioned topics.

Why? Well, frankly, because legal stuff is perceived as boring. It’s not “move fast and break stuff”—it’s “move slowly, and make sure you read every word.” That’s not fun, but it is necessary. The larger lesson one should take away from the Unroll.me incident is that founders, VC’s, accelerators, and tech journalists should all turn around and discuss the Terms of Service as much as any other metrics. After all it’s the legal footing upon which the financial relationship between companies and customers ultimately rests. Well-done TOS should be emphasized just as much as raising a Series C round. After all, many companies won’t even get to Series C, but they for damn sure won’t get to Series A without a rock solid TOS.

Firsthand Experience

I learned this firsthand when I was starting my first company, a music-tech startup. What’s the first thing anyone thinks about when they hear “music company?” Getting sued. And I knew that.

So I read every TOS and license I could relating to music—I read Spotify’s, Apple’s, YouTube’s, SoundCloud’s, and even Rdio’s before they went under. I read every single word, and took notes on where each license and TOS assumed too much responsibility—some of which was unrealistic. And then I made sure that our own license and Terms of Service didn’t invite unwanted legal exposure—I wrote it that way. I knew everything in our TOS, and could run it over, forwards and backwards, in my sleep, to artists, founders, VC’s, or anyone else who asked.    

Of course not every person is equipped for feels prepared to write their own TOS. I did, but then again, I can’t code, so we all have our strengths and weaknesses. However, because I spent so much time researching, reading, and refining our license and TOS, I was intimately familiar with everything it said. You don’t need to be a lawyer to prioritize knowing your TOS. This is a massive advantage.

You Should Know Your TOS Forward and Backward, Inside and Out

Knowing what your company does and doesn’t do—what you’re allowed to do as written in your TOS—is an advantage because it’s something you can then share with your users. This gives you power. When you are well-versed in the legal aspects of your company as well as the financial or technical ones, you are able to paint a full picture for your customers and control the narrative that is told. It’s not about being deceptive—I would never advocate for that.

But people feel a whole lot less deceived when they’re able to have a real conversation about what they’re signing. Fear and doubt tend to dissipate when questions are welcomed, and people feel respected as customers and users.

This is what the takeaway should be, and where we focus future discussions. Yes, Unroll.me made some mistakes, and companies should try to learn from them and be open and honest with their TOS and other licensing agreements before anything questionable comes out. But we as an industry should similarly prioritize legal knowledge and versatility the way we do engineering prowess and marketing brilliance. In the end, it’s all required to make and run an amazing company.

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Thanks to Jason Rowley, Nick Abouzeid, Alex Marshall, and Eric Willis for reading drafts of this.

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Find me on Twitter @adammarx13 and let’s talk music, tech, and business!

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If You’re an Independent, Kiss SoundCloud Goodbye

The Partnership with Zefr Isn’t the Real Story

News broke today both on The Verge and TechCrunch that SoundCloud is looking to step up its drive towards revenue by signing a deal with Zefr. For those unfamiliar with Zefr, they’re the same partner who works with YouTube to track content and brands. Part of what makes Zefr so helpful to YouTube is that they are able to track media files as well as specific brands like Nike or Coke.

But that’s actually not the story here. The real story is buried deep in the TechCrunch article. Helpful though Zefr may be to and for SoundCloud, they can’t help with the larger problem that SC has created for itself. No, that has to do with the licensing quagmire that SC is increasingly encircling itself with. It goes like this.

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SoundCloud, now a platform for major labels and advertisers

– SoundCloud, now a platform for major labels and advertisers

SoundCloud blew up as an independent-driven engine way before major label music was even a thought. It was the place for the singer/songwriter in his basement, or the newly formed doom metal band, to post their recordings and attempt fan acquisition. It was beloved by independents the world over because it was a free, easy way for them to distribute their material and make a name for themselves. That’s where SC started, but it’s not where they now find themselves.

Legal Problems That Were Never Solved

Of course SoundCloud’s rich environment of remixes and covers led to a legal quagmire that saw them losing material as complaints were brought against them from the original sources for copyright infringement. While Zefr does help specifically with this, it’s effectiely irrelevant, as independents will begin to migrate away from SC amidst a new major label focus anyway. I can imagine it was a major headache for SC as remixes and covers are particularly popular in certain genres of music. Thus began the drive away from remixes and towards “more mature” content. For those who care, this is basically code for major label content.

soundcloud_logo

And thus, instead of solving the more challenging problem (the legalities associated with remixes and covers) SC rather decided to chase the major label route to better compete with services like Spotify and Rdio. (Again, as noted above, partnering with Zefr does help, but will essentially become irrelevant in the bigger picture). In doing this, they basically told their grassroots fanbase (you know, the people who gave them love and support (and traffic) before anyone else) that they didn’t need them anymore.

Rather than spend the few million dollars of their funding figuring out the legalities they were faced with (which probably couldn’t have amounted to more than ~5M), they made the choice to look towards the major label paradigm for music content. Frankly, the partnership with a company like Zefr which helps in the copyright arena may not be too little, but it is too late. Let’s examine how this worked out for them.

Buying Into a Broken Business Model

Back in November of 2014, SoundCloud signed a licensing deal with Warner Music Group (one of The Big Three) to bring onto SC’s platform the music which Warner controlled through itself and its subsidiary labels. My assumption was (is) that SC is looking towards the other two big labels (Universal and Sony) to sign similar deals, and step up to the same level as a service like Spotify. Here’s why that was a bad business decision:

1. A Bad Business Model 

SoundCloud already had a dedicated userbase of independents who used it, without demanding licensing money upfront. To put this in perspective, the deal which SC signed with Warner most likely cost them ~45-50M for a 1-year contract. This means that they paid somewhere in the neighborhood of 50M to license music content from Warner for a year. This in turn means that they will most likely need to renegotiate sometime later this year; those licensing contracts are not static agreements. It also does not account for the royalties which they will need to pay on the backend. So, to recap, multi-million dollar expense on the front-end (which will need to be renegotiated eventually) and multi-million dollar expense on the backend.

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What the major label industry really looks like; The Big Three

– What the major label industry really looks like; The Big Three

2. You Can Only Have One Priority #1

Business 101: You can only have one priority #1 in the morning. SC’s priority #1 used to be its independent artists/users. Now it’s not, and it can’t be. How do I know? Because Warner now holds the power in the relationship. In providing SC with major label content, they have eventually shifted the paradigm of SC’s focus from independents to Warner’s major label artists. This means that, eventually, independents will begin to understand that they are no longer the priority, and will migrate elsewhere. That’s not a guess, that’s fact. Look at the migration patterns:

MySpace==>Purevolume==>Facebook==>SoundCloud==>?

The reality is that independent artists are loyal only insofar as they are the priority customer base. Why would they be loyal beyond that? They don’t have major label deals and massive radio play on FM radio to fall back on. And they’re not signed to a powerhouse like Warner or Universal. Which means they don’t need to settle for anything; they’re free to do whatever the hell they want.

3. You Should Never Depend on Anyone Else

SoundCloud has basically tied itself to the major label paradigm, which could cost it. It’s never a good business decision to tie your company’s future to the company structure and revenue of someone else. You should never be dependent on another company’s good fortune for your own upward trajectory. But in signing a deal with Warner, that’s effectively what SoundCloud did.

It goes like this: As the independents begin to see that SC has shifted its focus from their desires and needs to those of Warner’s major label artists, they will begin to look for other options. SoundCloud can’t really do anything about that because they’re now tied to Warner (and searching for deals with Universal and Sony). That means that as the independents begin to trickle out, they can’t market any sort of real campaign to woo them back; Warner wouldn’t let that happen. And if I was Warner, I wouldn’t either. Why would I? I want all the focus on my artists, not some independent artist who might be taking ears away from my stable of talent.

Once the independents start to trickle out to somewhere else, SoundCloud is essentially locked in to the major label paradigm. It will effectively need to renegotiate with Warner (and the others) because their major label content will become its lifeblood. If Warner decides not to renew their contract with SC (which they could do, since they have Spotify, Rdio, Deezer, etc. to fall back on), one could see the music-life sucked out of SC in a heartbeat. With no major label content, SC could become a shell of its former self, begging the independents to come back (which takes years, if it ever happens at all, just look at Purevolume and MySpace).

4. The Big Kicker

Now here’s the big kicker for SoundCloud: they have not yet been able to secure deals with Universal or Sony—only Warner. This means that they are effectively straddling two completely different music industries moving in opposite directions: the major label machine and the independent arena. Precarious though this may be, it’s not a secret. And the independents know it. Artists I’ve spoken to are already looking for more alternatives because they recognize that SC will soon become the same sort un-level playing-field as Spotify or Rdio, where they essentially stand no chance against the Taylor Swift’s and One Direction’s of the world.

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SoundCloud only has a deal with Warner as of now

– SoundCloud only has a deal with Warner as of now

If I’m SoundCloud, I’m driving hard at those Universal and Sony deals because I can’t backup. If I try to, that will send a message to Warner that I’m not really invested in their business model, and since Warner essentially now holds the keys to my content, that could be a major mistake. But if I continue to pursue those deals with the other major labels (which I can pretty much guarantee is what SC will do) I will lose that attractive quality that made me popular among independents to begin with.

Except these aren’t really the thoughts going around in SoundCloud’s head; they already made their decision when they inked that deal with Warner last November.

SoundCloud’s Independent-Focused Days Are Over

The options for SoundCloud as I see them now are really only to double-down on the major label paradigm and business model. They need to out-Spotify Spotify; and that’s going to be very difficult. Rather than sitting pretty as king of the hill with the ever-growing base of independents, they made the decision to move towards the major label content arena.

Does this mean that they are destined for failure? Of course not; they may in fact find a way to play the major label game better than even Spotify or Rdio. That’s entirely a possibility. Really only time will tell if that is what becomes of SC’s new business trajectory.

But it does mean that SoundCloud will play less and less of a significant role in the independent sphere, possibly moving mostly out of it in the next few years. It makes no economic sense for them to stay, now that they are pursuing the major label route. They may host independent material, but the independents will never be their bread and butter again—those days are coming to an end.

Independents aren’t stupid; they go where the best opportunities are for them. They don’t stick around too long where they’re not wanted or cared for. I wouldn’t, not if I was free to do what I wanted. Which begs the question: where will they go next?