A Big Copyright Mess: Miel Bredouw, Barstool Sports, Slob On My Carol Of The Bells And The DMCA
from the copyright-is-bad-at-this dept
Okay, we’ve got quite a story today about how copyright is a total mess and not really fit for the way the internet works today. It involves a comedian, Miel Bredouw, a short silly (perhaps NSFW) video she made, the asshole dudebros over at Barstool Sports, Twitter and the DMCA. There are so many details to parse out before we get to the lessons to learn from this, so let’s take this one step at a time.
More than two years ago, in November of 2016, Bredouw made a 36-second video in which she muses on the fact that the well known (and probably NSFW) song Slob on my Knob by Three 6 Mafia, can be sung to the tune of Carol of the Bells, which (as you probably know) is a classic Christmas carol. The video is embedded here, though (again) I warn you that you might not want to watch it at work:
Anyway, that video went fairly viral, as one of many videos on YouTube with, um, unique takes on the Three 6 Mafia song.
Fast forward to the end of last year, when Barstool Sports enters the picture. We’ve written about Barstool Sports twice — and both times involve them being (1) total assholes and (2) totally ignorant or abusive about intellectual property law. If you’re not familiar with Barstool Sports, let’s just say that it’s the kind of work environment where it wouldn’t just be okay to watch a video like the one above while at work, but it would likely be encouraged.
Anyway, in December, Barstool Sports took Bredouw’s now two-year-old video and reposted it to their own Twitter account, without any credit (and certainly suggesting it was a Barstool Sports production). Bredouw tweeted at them that this was uncool. Yesterday, Bredouw then tweeted out a thread about what happened in the intervening two months, and it is quite a story.
After Barstool ignored Bredouw’s request for credit, she filed a DMCA notice with Twitter, who took the video down. Once the DMCA takedown occurred, Barstool Sports finally reached out to Bredouw with an apology, asking her to “remove that strike” from their account:
In December, they reuploaded one of my videos without credit. I asked for credit, was ignored, and filed a DMCA takedown. Twitter quickly took it down and IMMEDIATELY Barstool's social guy sends me an email. I don't respond. He emails again in early February. I don't respond. pic.twitter.com/GYLYOnHFXq
— miel (@miel) March 4, 2019
Not really caring about what Barstool Sports wants, Bredouw ignores the request. And then another request in early February. A few weeks go by and apparently things “escalate” with the company’s General Counsel, Mark Marin, who is, like, a real lawyer and everything, sending Bredouw slightly more urgent emails offering increasing amounts for her to retract the DMCA notice. It starts with an offer of a $50 giftcard to Barstool’s merch store, to eventually an “anxious” offer of $2,000 cash:
I honestly thought it was finally over after two weeks of silence. Until this morning, I get another email from legal guy now offering me $2000. Which I would never take (10000% fuck barstool sports) but EVEN IF I wanted to… extortion? Like in what world. pic.twitter.com/s561QpZBPX
— miel (@miel) March 4, 2019
Apparently, Barstool Sports, in a manner that only Barstool Sports folks would think makes sense, decided that the proper course of action was to then have a bunch of people totally bombard Bredouw with demands to read her messages (as if she hadn’t been):
Then the full on harassment begins. I didn't screenshot all the messages before deleting but across my IG, my twitter, my email, my PODCAST'S INSTAGRAM, TWITTER, AND EMAIL they send me these messages. Hundreds. I block them. They find me again. Still, I don't respond. pic.twitter.com/bpPEtNupBJ
— miel (@miel) March 4, 2019
This is all pretty obnoxious. And when Bredouw still ignores the $2,000 offer, Barstool’s legal dude in chief decides to file an obviously bogus DMCA counternotice claiming:
We believe that this material was removed as a result of an error. The content shown in the video was sent to us from a user who claimed to have full rights to license and assign the content to us to post on our account. After receiving this DMCA Notice, we reached out multiple times through multiple platforms (email, twitter DM) to attempt to resolve the issue directly with @miel, but @miel has not responded to any of our attempts to communicate and even blocked us from DM’ing without any justification. Unless and until @miel elects to engage in a discussion to determine whether we had the rights to post the video, we continue to assert that we had the rights to post the content that was removed.
I guess you could argue that Barstool Sports deserves at least partial credit for accurately describing that they tried to reach out to Bredouw and she ignored them. Though, the whole “blocked us without justification” is kind of rich — considering how they bombarded her with demands and, frankly, it was not her problem to deal with. But that last line is utter bullshit. Even a quick review of the basic facts would demonstrate to Barstool’s very real, serious lawyer who has a JD and everything, that it wasn’t she who submitted the video to them and it was obviously her video in the first place.
Either way, Twitter then did exactly what it should do under the law, upon receiving the counternotice, and let Bredouw know that it would be putting the video back up unless she filed a lawsuit withing 10 days. This is not some awful, arbitrary move by Twitter, this is how the DMCA’s counternotice process works (see 512(2)(B) and (C)). Bredouw has no interest in suing (indeed, seems to have little interest in dealing with any of this) and actually it’s not even clear she could sue, as I’m not sure she registered a copyright on the video in the first place.
After Bredouw’s Twitter thread on all of this went nearly as viral as her original video, Barstool Sports’ Founder admitted that the company’s actions were “moronic and make us look like assholes.” Frankly, that’s not a particularly difficult task:
“Where Barstool went wrong is that when she refused to respond and it became clear she had no intention of speaking with us we should have ended it,” Barstool’s founder, Dave Portnoy, told Business Insider in an email. “Unfortunately Barstool Sports has idiots in our company much like many other companies and those idiots acted like idiots. I regret our lawyer offering a 50 dollar gift card to our store not because it’s illegal in any manner but it’s just so moronic and makes us look like assholes. That’s why lawyers should not be on social media.”
Of course, the fairly obvious backdrop to what’s happening here is the requirement under the DMCA for internet sites to have a “repeat infringer policy,” in section 512(i). There have been a bunch of lawsuits lately exploring just what that repeat infringer policy must look like, but it’s fairly critical for sites like Twitter to have one if it wants to make use of the DMCA’s safe harbors. And thus, if an account — like Barstool Sports — gets a bunch of strikes, Twitter will shut down its account. The ongoing theory behind Barstool’s very real lawyer and his desperate pleas is that Barstool Sports already has a few DMCA strikes, and it’s getting close to losing its Twitter account.
And that’s where things stand, as I started writing up this post (I’m afraid to check what’s happened while I’m writing it). I will note that… there seems to be considerable misplaced anger directed at Twitter for all of this. Mashable says this story “reveals Twitter’s copyright issues” while the Verge’s weird take is that this “shows how Twitter’s copyright system can hurt creators.”
That’s nonsense. None of this should be on Twitter, who is just accurately following what the law enables, and it’s the process that most of the time the very same people who are now criticizing Twitter would be celebrating, because it’s what allows companies to minimize the (very real) damage of bogus takedowns. If the takedown really is bogus, it should be easy to get the video back up. But what if it’s the counternotice that’s bogus? That’s… trickier. As the law is set up, then the only response is to sue. And, again, it’s not clear that Bredouw even could sue if she wanted to. She would have needed to register the video beforehand, and even then the copyright on the video would be a relatively thin one, as much of the video is actually a mashup of two songs that she does not hold any copyright on (to be fair, the music for Carol of the Bells, is in the public domain, as a work composed in 1914 (sorta)*). The lyrics, though, are under copyright — but not to Bredouw. The video could still potentially get a copyright, but it would seem that whoever holds the original copyright to Three 6 Mafia’s songwriting would have an even stronger claim.
Either way, this highlights two key points: firstly, the DMCA was designed for very different situations than this one. Which is why this fits so badly on all fronts and no one is happy. Bredouw didn’t want Barstool Sports taking credit for her viral video. Barstool Sports didn’t want to lose its Twitter account. Twitter doesn’t want to lose its DMCA safe harbors.
Secondly, the reality is that we shouldn’t need copyright to solve this kind of situation anyway. That’s not what worked here. Indeed, copyright has created a solution that pisses everyone off. What worked was social shaming. Bredouw’s Twitter post simply made everyone aware (or reconfirmed for those who already knew it) that Barstool Sports are a bunch of dudebro assholes (which the company seems to fully admit to). The real issue here was one where Bredouw didn’t want the economic advantages that copyright enables, but rather something that is not actually tied to copyright: credit for her, um, let’s call it “creativity.” But that’s not what copyright was designed for. But, because it’s the tool that’s available, that’s what was used to take down the misappropriated, un-credited video, and that resulted in a legal process ill-suited to what the dispute was really about.
In short: copyright is a really big and misguided hammer for situations such as this, and public shame is a much better tool. But, we shouldn’t be attacking Twitter for following the law appropriately. And we should be pointing out that Barstool Sports truly are a bunch of assholes.
* Dammit, this post is seriously long enough not to go down this rabbit hole, but we’re already here, so let’s go: Wikipedia notes that Carols of the Bells had the music written in 1914, but based on Ukrainian folk music. But there are lots of other dates involved with the song, including its first “Western” performance in 1919 and its first performance in the US in 1921. The article also notes that while the music is in the public domain, the lyrics are still under copyright. That struck me as odd, but apparently American composer Peter J. Wilhousky got a copyright on a new set of lyrics for the music in 1936 — meaning that they are still under copyright (even though when he got that copyright, he would have assumed that the lyrics went into the public domain many years ago). Either way, none of the lyrics are used in the video at issue here, so the use of the music is clearly public domain.