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This story was published as part of Billboard’s music technology newsletter ‘Machine Learnings.’
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Let’s get the news out of the way: on Monday (Nov. 24) Drake initiated legal action against Universal Music Group — the parent company of his record label — and Spotify over allegations that the two companies conspired to artificially inflate the popularity of Kendrick Lamar’s diss track “Not Like Us.” This, he says, was done through a variety of allegedly illegal promotional methods, like UMG — which also is the parent company to Kendrick’s label — accepting a royalty reduction in exchange for boosting streams; payola via independent radio promotions; and paid but undisclosed influencer campaigns. (For their part, Universal called these claims “offensive and untrue.”)

Longtime readers of Machine Learnings know that most of the topics presented in Drake’s case are ones we’ve covered extensively in this newsletter. I don’t take the issues of streaming fraud and shady digital marketing tactics lightly, and if these allegations are true, it would be a bombshell that one of the world’s biggest artists called out the world’s largest music company for partaking in it. (And trust me, I’d be all over reporting that!) But while Drake’s allegations could still hold some merit, this particular court document seems to be backed up with questionable evidence and — it seems — some level of misunderstanding about the way music promotion works today. 

So let’s break it down. Here are a few key quotes from Monday’s court document, with commentary.

“In his memo to staff reflecting on the highlights of 2021, the CEO of UMG, Lucian Grainge, remarked on it being ‘harder than ever for artists to break through the noise: sixty thousand songs are added to Spotify every day.’”

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Maybe I’m splitting hairs by pointing this out, but I find this to be a strange way to begin laying out these allegations. Why are they citing highlights from 2021 when we get updates every year about how many songs are added to Spotify on a daily basis? It would have been far more effective to start by including the 2023 stat: 120,000 songs are uploaded to Spotify each day, according to Luminate. Or, if they want to keep the quote from Grainge in, why not tack that current number on to the end?

Throughout this document, it seems like Drake’s team is missing key, up-to-date information on the ways songs are released and marketed today. This is surprising, given Drake is one of the most successful artists in the world and one who often makes savvy marketing and business decisions. One of those marketing tactics that immediately comes to mind is when Drake graced the cover of a ton of Spotify playlists during the release of his album Scorpion in 2018 to raise awareness, and streams, for the project. It was so over the top that Billboard reported at the time that some fans were calling for Spotify to provide refunds because they were seeing too much Drake.

“On information and belief, UMG charged Spotify licensing rates 30 percent lower than its usual licensing rates for “Not Like Us” in exchange for Spotify affirmatively recommending the Song to users who are searching for other unrelated songs and artists. Neither UMG nor Spotify disclosed that Spotify had received compensation of any kind in exchange for recommending the Song.”

Rather than some nefarious back room deal, this sounds like Drake’s lawyers are referring to Spotify’s Discovery Mode feature, which is used by a wide array of labels and artists and is practically never disclosed. According to an article from Spotify’s support team, artists who want a song to receive an additional algorithmic boost on the platform can opt in to Discovery Mode which “doesn’t require an upfront budget” and instead takes a “30% commission… to recording royalties generated from all streams of selected songs in Discovery Mode contexts.” 

When Spotify debuted this feature in November 2020, it immediately drew controversy. In June 2021, Reps. Jerry Nadler (D-NY) and Hank Johnson Jr. (D-GA) sent a letter to Spotify’s CEO/founder Daniel Ek voicing worries that the feature “may set in motion a ‘race to the bottom’ in which artists and labels feel compelled to accept lower royalties as a necessary way to break through an extremely crowded and competitive music environment.” 

Again, in March 2022, Reps. Yvette D. Clarke (D-NY), Judy Chu (D-CA) and Tony Cardenas (D-CA) — co-chairs of the Congressional Caucus on Multicultural Media — expressed concerns that Discovery Mode “lack[ed] transparency” for both artists and consumers. The representatives then asked the company to publish “on a monthly basis the name of every track enrolled in the program” and the agreed-upon discounted royalty rate for each, calling Discovery Mode “a serious risk for musicians.” 

That said, it’s not clear if “Not Like Us” was part of Spotify’s Discovery Mode program, and historically, Universal Music Group has not been known to use the feature for any of its frontline releases — including any Kendrick Lamar or Drake songs.

“UMG, directly or through Interscope, also conspired with and paid currently unknown parties to use ‘bots’ to artificially inflate the spread of ‘Not Like Us’ and deceive consumers into believing the Song was more popular than it was in reality… One individual unknown to Petitioner revealed publicly on a popular podcast that Mr. Kendrick Lamar Duckworth’s ‘label’ (i.e., Interscope) paid him via third parties to use ‘bots’ to achieve 30,000,000 streams on Spotify in the first days of the release of ‘Not Like Us’”

If this is true, this is streaming fraud and would be a serious offense. Just a few months ago, a man named Michael Anthony Smith was indicted by federal prosecutors on charges of wire fraud, wire fraud conspiracy and money laundering conspiracy for allegedly using bots to boost the streams of his catalog and to help him siphon $10 million out of the royalty pool.

But the evidence here is sketchy. Drake’s lawyers admit that the “individual” who was allegedly solicited to artificially drive up Kendrick’s streams is “unknown to [Drake]” but that this anonymous person went on DJ Akademiks’ podcast to talk about this alleged scheme. DJ Akademiks is a podcaster who is known to be close with Drake, and he has played a significant role in backing up Drake during the beef earlier this year. Even if this ended up being true, which seems like a stretch, it feels quite biased. 

“While historically payola has been thought of in terms of paying radio stations to play songs, in February 2020, the Federal Trade Commission released guidance stating that ‘by paying an influencer to pretend that their endorsement or review is untainted by a financial relationship, this is illegal payola.’ On information and belief, UMG employed a similar scheme by paying social media influencers to promote and endorse the Song and Video. For example, Petitioner understands that UMG paid the popular NFR Podcast — which has nearly 300,000 subscribers on YouTube and over 330,000 followers on X — to promote ‘Not Like Us’”

Drake’s team is citing a quote from February 2020 by the FTC that has been removed from the agency’s website. I do not know if that means it is no longer their current rule, or if there was another reason.

What I do know is that just a few months ago, I wrote a story on the topic of influencers receiving undisclosed payments to play songs in the background of TikTok videos. I went into the reporting believing, as Drake’s team seems to, that this was definitely against FTC guidelines, but the FTC told me that wasn’t necessarily the case. 

“While we can’t comment on any particular example, that practice seems somewhat analogous to a product placement,” the FTC told me. “When there are songs playing in the backgrounds of videos, there are no objective claims made about the songs. The video creator may be communicating implicitly that they like the song, but viewers can judge the song themselves when they listen to it playing in the video. For these reasons, it may not be necessary for a video to disclose that the content creator was compensated for using a particular song in the background in the video.”

Some of the examples from NFR that Drake cites here are not exactly the same type of pay-to-play content I researched for my story, but I could see these examples being acceptable by the FTC based on what they told me. One example of UMG’s alleged influencer payola cited by Drake’s lawyers was a tweet by NFR that says that Kendrick Lamar’s new music video was released. Another was NFR saying “Kids rapping Kendrick Lamar’s ‘Not Like Us’ word for word at a birthday party.” Another: “Kendrick Lamar’s ‘Not Like Us’ becomes the FASTEST rap song to reach 300M Spotify streams.” 

All three of these examples are objective statements about one of the biggest artists in the world. Referring back to the statement I got from the FTC, “There are no objective claims made about the songs…viewers can judge the songs themselves.” (I say all this while also acknowledging that some of the other examples listed might be in more of a gray area with the FTC). 

The practice of paying influencers to post about new songs is nothing new, and one major label marketer told me he estimated “75% of popular songs on TikTok started with a creator marketing campaign.” According to digital marketing experts, influencer campaigns have been the go-to marketing strategy at every major label since TikTok took off in 2020. With that in mind, it is hard for me to imagine that Drake’s team has never run a similar campaign for any of his own viral hits, which would undermine his entire argument.

“Streaming and licensing is a zero-sum game. Every time a song ‘breaks through,’ it means another artist does not. UMG’s choice to saturate the music market with ‘Not Like Us’ comes at the expense of its other artists, like Drake. As Drake is Petitioner’s sole owner, and Petitioner owns the copyright to Drake’s entire catalogue, Petitioner suffered economic harm as a result of UMG’s scheme.”

I find this to be a strange claim — that if Kendrick’s song streams well it directly takes away from Drake or other artists. It feels like a stretch to blame Kendrick for other artists not succeeding with their songs at the same time. I imagine Drake faced more “economic harm” from the reputational damage this song did to him (by calling him a “pedophile”) than it did by being a “zero-sum” streaming game. Plus, with UMG the parent company distributing both artists — and thus making money from their success — it makes no business sense for them to be deliberately harming his career and prospects.

This zero-sum claim seems to be what he’s getting at in his second legal filing, released Tuesday (Nov. 26). In it, he claims UMG should have stopped Kendrick from releasing a song with “false” claims that defamed his character.

“UMG … could have refused to release or distribute the song or required the offending material to be edited and/or removed,” Drake’s lawyers write in the court document. “But UMG chose to do the opposite. UMG designed, financed and then executed a plan to turn ‘Not Like Us’ into a viral mega-hit with the intent of using the spectacle of harm to Drake and his businesses to drive consumer hysteria and, of course, massive revenues. That plan succeeded, likely beyond UMG’s wildest expectations.”

By saying this, Drake is essentially advocating for labels to censor their artists, which is a very slippery slope — I’d wager most people would find it troublesome if a billion-dollar corporation started preemptively censoring art. Not to mention, Drake has levied plenty of his own unsubstantiated claims against Kendrick this year, most notably on also-UMG-released diss track “Family Matters.” 

The hip-hop industry has fought for years to remind the judicial system in the U.S. that not everything a rapper says in a song is a cold hard fact, and it should not be used as evidence against a rapper in a criminal sense. As top music attorney Dina Lapolt once put it to Variety,  “[these] attempts to put all rap lyrics into the categories of historical fact and fiction [are] failing to understand that hip-hop, like most art, is more complex than that… lyrics are not to be taken literally.”