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Tidal and Kanye West sued over ‘never never never’ tweet

By Chris Cooke | Published on Tuesday 19 April 2016

In what is possibly my favourite pop lawsuit of all time, Tidal and Kanye West are being sued over the latter claiming via the tweets that only place you would ever get access to his new album ‘The Life Of Pablo’ would be via the former. That promise, of course, didn’t entirely hold up.

As previously reported, the release of West’s new long player was, it’s fair to say, rather confusing, with the world mainly relying on the rapper’s Twitter feed for updates. But what became clear quite early on was that Tidal had the exclusive, with the album appearing there first, even before West had actually finished the record, with occasional updates being made to tracks even as they were streaming.

Then came West’s tweet that “my album will never never never be on Apple. And it will never be for sale… You can only get it on Tidal”. It seemed that West – as one of Tidal’s celebrity shareholders – was taking the exclusives strategy that the Jay-Z led streaming firm had adopted in the last year to the extreme. And, given Tidal’s recent subscriber boost, it seems the exclusive on ‘The Life Of Pablo’ was a marketing success.

It seemed brave for an artist to only allow users of one streaming service to ever access his new material, even if that service could make such an arrangement financially rewarding. And, sure enough, one of West’s new tracks subsequently popped up on the other streaming services. And then another. And then the rest of the album.

What about that “never never never” tweet though, Kanye? Well, that’s what West fan Justin Baker-Rhett wants to know, he having signed up to Tidal to access the new record, only to subsequently find out he could have enjoyed that music without ever having to sully himself with a Tidal subscription.

While Baker-Rhett may have subsequently cancelled said subscription, what about the time, and the hassle of installing the Tidal app, and all that personal data the Jay-Z company grabbed as part of the deal? This all sounds like false advertising, unfair competition, fraudulent inducement and unjust enrichment to me. Well not to me, but to the lawyers who filed a class action on behalf of Baker-Rhett yesterday.

Summarising the litigation, the law firm leading on the action, Edelson PC, argue that Jay-Z’s business empire and West himself “duped consumers into signing up for Tidal subscriptions – which required handing over troves of valuable personal data including credit card information – under the false pretence that doing so was the only way they would be able to hear ‘The Life Of Pablo’. Consequently, Tidal unjustly benefitted in myriad ways from this collection of consumers’ personal data and the accompanying increase in its subscriber and streaming numbers”.

The lawsuit goes onto allege that Tidal was “near-collapse” last year, basically implying that the West exclusive was key in keeping the service going. And that, the lawyers go on, relied on the ‘never never’ tweet, which they reckon was “a clear and unqualified representation that ‘The Life Of Pablo’ would be a permanent exclusive on Tidal”, a fact picked up by “countless news outlets”.

“A month and a half after releasing ‘The Life Of Pablo’ on Tidal, West made it available on other platforms including Apple Music, Spotify, and his own website”, the lawyers continue. “It was even available for free. By that point, plaintiff Baker-Rhett and millions of other consumers had been misled into believing they could only hear the album on Tidal. Had they known they’d be able to listen to the album elsewhere, they would not have become Tidal subscribers”.

So, that’s all fun, isn’t it? Should the law uphold a promise made in a tweet, and a Kanye West tweet at that? It all seems like a rather ambitious lawsuit to me, but one that could prove rather interesting as it proceeds.

We actually discussed whether West could be held to account for his Twitter promise on a recent addition of the CMU Podcast, noting the possible defence that ‘The Life Of Pablo’ was a work in progress at the time of the ‘never never’ tweet, and that the version then streaming on Tidal technically ‘never never’ did make it to the other streaming platforms. Though I’m not here to defend West et al. Well, not without a fee.

In the meantime, popstars of the world, be careful what you tweet now, won’t you? I mean, imagine if it turned out that West did in fact let his exes play with his ass. What a class action that would be.