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:

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:

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):

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.

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Comments on “A Big Copyright Mess: Miel Bredouw, Barstool Sports, Slob On My Carol Of The Bells And The DMCA”

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That Anonymous Coward (profile) says:

We’re gonna blame it all on teh Twitters because they let mean people call us out for being stupid in the past.

Copyright law is a clusterfuck, Twitter has a very clear policy.
Barstool fscknuggests have done this enough times that when they ripped off another person they came very close to having their account closed b/c they are a repeat infringer of others content.

One also wonders how many claims they have faced lifetime just so we can see how much of their budget is now set aside to pay people off to retract strikes rather than get clearances.

Barstool screwed this up.
Not Twitters fault, not Miel’s fault.
Barstool took someone elses content & pretended it was theirs.
(Anyone want to put in the 3 minutes to find the owner screaming at someone who ‘stole’ their work?)
They ignored her really polite request just to be credited.
Then they decided she shoudl take merch from them…
And they should bury every single online account with any connection to her with OMG CHECK YOUR DM’S GIRL.
(Like that needy guy who lives in his moms basement who keeps calling you after the blinddate when you crawled out the bathroom window to get away from him).
Then they offer actual money b/c they figured out they have screwed themselves with their actions.
Then they lie to Twitter.
Shame there is no penalty for them doing it.
(though I have to suspect with all of this coverage Barstool might need to turn itself over so they can figure out how fscked they really are.. admitting on twitter you lied to twitter about a legal document you sent them… Pretty sure that might be a bigger sin than getting copyright strikes).

That Anonymous Coward (profile) says:

Re: Re: Re:

And what portion of any of that matters?

They took content that wasn’t theirs, ignored her simple request to be credited, then went full stalker on her to save their account because she invoked her rights.

Then they compounded it by lying to Twitter that someone uploaded it to them so they are in the clear.

They have now thrown the lawyer under the bus & are pretending they are sorry. They are sorry they got caught & might lose access to an outlet they seem to depend on.

But then what else would you expect where a job perk is listed as female interviewee’s??

Mason Wheeler (profile) says:

Re: Re: twitter & copyright

To a certain extent, yes. But if it’s not registered, you don’t have much in the way of legal protections. If someone infringes on your work and it’s not registered, (and there are a few nuances to this but nothing that would make this statement untrue in general,) you won’t be able to successfully sue them in court for their infringing actions.

Mason Wheeler (profile) says:

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."

And they’re completely right, about everything except for the name "Twitter." This story reveals the DMCA’s copyright issues, and shows how the DMCA’s copyright system can hurt creators. All Twitter did here is to comply with the de facto (if not necessarily de jure) obligation to implement a DMCA takedown system.

If we want to fix this sort of problem, repeal the DMCA and do away with its takedown system. Twitter (and pretty much everyone else!) would most likely be more than happy to revert to a saner policy if they were legally able to do so.

Mike Masnick (profile) says:

Re: Re:

If we want to fix this sort of problem, repeal the DMCA and do away with its takedown system.

I know you keep advocating this, and every time you do people point out that what would replace it would be much, much worse. Without some sort of protections, intermediaries will more quickly takedown works and be less likely to ever put them back online. That’s not a good solution.

If you can put in place a CDA 230 style system, that would certainly be better. But it’s a non-starter politically.

Mason Wheeler (profile) says:

Re: Re: Re:

If you can put in place a CDA 230 style system, that would certainly be better.

Which is what I’ve been advocating for all along. Why should copyright be a special exemption to the liability rules that govern literally everything else?

But it’s a non-starter politically.

Are you sure? Don’t take this the wrong way, but… you don’t exactly have the best track record at this kind of prediction. You were surprised by SOPA/ACTA being defeated, and again with the TPP getting shut down in Congress. Each time, you thought that they were sure things politically, and each time, we ended up with laws that protected the Internet and made things better. Might I respectfully submit that the pendulum is finally swinging back in the right direction and right now is a very good time politically for something like this?

Thad (profile) says:

Re: Re: Re: Re:

Don’t take this the wrong way, but… you don’t exactly have the best track record at this kind of prediction. You were surprised by SOPA/ACTA being defeated, and again with the TPP getting shut down in Congress.

Neither one of those things involved passing a new law; each involved blocking a new law from being passed. Which, generally speaking, is a lot easier.

Each time, you thought that they were sure things politically, and each time, we ended up with laws that protected the Internet and made things better.

I don’t know what you mean by this. What "laws that protected the Internet and made things better" did we get when SOPA and the TPP failed to pass Congress?

Thad (profile) says:

Re: Re: Re:3 Re:

"we ended up with [a legal situation] that protected the Internet and made things better" doesn’t make any more sense than "we ended up with laws that protected the Internet and made things better," Mr. Coward. When you don’t pass a law, you don’t "end up with a better legal situation"; you end up with exactly the same legal situation you had when you started.

Mason Wheeler (profile) says:

Re: Re: Just an aside...

That’s not just meter; that’s an example of the Barney TV show reusing a tune with different words.

What Bamboo Harvester is referring to is that the Gilligan’s Island theme song was written in ballad meter. Well, mostly. In "proper" ballad meter, the note pairs "and you’ll" and "a fate-" from the first verse should only be a single syllable each, rather than two. Keeping these minor scansion hiccups in mind, you can use its tune interchangeably with any number of other songs, including Amazing Grace and America the Beautiful. (Try it. Sing the Gilligan’s Island theme to one of those tunes and see how well it works!)

ECA (profile) says:

Love those that dont want to take 1 step

1 thing could have fixed all this and the group, didnt take it…
they forgot 1 little thing and could of fixed it..

they didnt check their email or didnt care..
She asked, they didnt care…and she did what she needed..
since, they didnt listen to her, she didnt listen to them..

Bad for both sides, worse for the bad guys..

Anonymous Coward says:

Re: Re: Re: Love those that dont want to take 1 step

I’m not knocking him. I’m actually very curious why people today are using so many periods to separate sentences, and even phrases/Clauses. My mother started doing that several years ago out of the blue in her emails. My own theory is that it’s the result of the Harry Potter craze. If you’ve ever read the books, the author does that a lot, especially in the dialogue.

Anonymous Coward says:

Re: Re: Re:3 https://en.wikipedia.org/wiki/Ellipsis

An ellipsis is made with exactly three periods, used to indicate a pause between thoughts. What I’m talking about is people writing entire paragraphs and the only punctuation is a (seemly) random number of periods between sentences and phrases, often several periods.

Anonymous Coward says:

I am a UAW member and for the record I am NOT anti-Union. I am Anti CORRUPT Union. I was raised in a a suburb of Detroit. Both my Mother and my father were hard working, blue collar Union workers. They were factory workers by trade, and our household was pure Democrat and members of the UAW.

Politically, I was raised a Democrat but leaned Republican after watching Carter screw America so badly. I voted for Ronald Reagan for the presidency. Even though I wasn’t impressed when he followed through with Jimmy Carter’s previous agenda to bust the PATCO workers. I still liked Reagan’s overall policies. After Clinton took office I was thoroughly convinced that BOTH parties had an equal hand in selling out the American workers by exporting jobs to slave trade countries. By 2008, I became convinced that the Republican Party had abandoned its conservative, constitutional principles and I started leaning Libertarian.

Then comes Obama’s tales of change and hope that had mislead the American people and he had carried the torch faithfully for Wall Street as much as any of his predecessors. He drove the knife in the backs of millions of union workers and is directly responsible for the attack on middle income workers with his attack on our wages while leaving the auto execs making billions!!!! His policies forced workers to 2 tier and even 3rd tier wages and forced us to give up our only effective bargaining tool by giving up our right to strike. He continued his attack on our jobs with BS agreements with Korea, NATO and WTO. I voted for Trump and now realize he is way better than Obama 2.0 (Hillary) ever could have been. I am glad to say that I am part of the #WalkAway Campaign. So far so good!

Anonymous Coward says:

Re: Re: Why not both? Borstschit

A totally not fake advertorial for the #walkaway grift. I do wonder who is funding that steaming pile. It is somewhat telling that they think the American people are dumb enough to fall for that. But in the end it doesn’t really matter if it’s russian disinformation or just plain old con artists.

Anonymous Coward says:

Re: Re: Re: Why not both? Borstschit

The thing that I enjoy and respect so much about Hamilton’s writing in the Federalist Papers is that he made an argument that was persuasive to Both sides. He laid out the foundation of why people advocate for their own rights, even too loudly and with too much invective, and accepted it for what it was. Then he went on to advocate for shared objectives, and eventually convinced enough people with his Words to create what we now know as the United States of America. Hamilton Invented a lot of what is America with his Words and his reasoning.

Arguments about how dumb American people were are not new or especially creative or noteworthy. Nor are arguments about the influence of foreign governments new or noteworthy. Tyrants have been trying to "protect" people from themselves and from foreigners since the dawn of time.

What are you FOR? Hamilton was FOR a confederation of states, in a particular form, to achieve particular goals. He was persuasive in his arguments (along with others of course) and created arguably the best country in history, as measured by both the economic and personal freedoms enjoyed by the citizens.

Are you FOR the Green New Deal? Personally, I think it doesn’t make sense to punish ourselves economically and ceding the world market for goods to China while we wait for a breeze. Are you FOR free speech, and protecting people from public and brutal attacks by bullies? Personally, I’m for that, I think people who punch other people, especially bigger people punching smaller people, is wrong and should be severely punished. It’s a hate crime when it’s motivated by political reasons. Are you FOR the building of the wall on the southern border or against? Personally, I think it’s a good idea to slow down illegal traffic crossing the border, and a wall would help with that. Good idea in my book.

Falling back to "Russian disinformation" as an argument looks stupid to anyone who reads it now, just as "British disinformation" did in Hamilton’s time. Stupid argument. Try again. Or be publicly considered an idiot.

Anonymous Coward says:

Re: Re: Re:3 Techdirt farms remembers

I am 66 yrs old and have been a lifelong moderate Democrat. I voted for Obama in 2008 and again in 2012 because I felt he hadn’t had enough time to implement the changes he wanted. I started to really question my choice shortly after the second election. I finally had to admit that the agenda was all talk and was supporting dishonest, dangerous policies. I was mortified when he turned his back on our law enforcement and Israel. I could finally see that politicians are bought and paid for and not in the least bit for the people of this country. I started to detest Hillary when she bashed the women abused by her husband and when the entire Democratic party rallied in support of him despite his perjury. Her corruption only became more apparent to me during Obama’s administration. When she ran for President I felt myself cringe. I knew in my heart I could never support her, but I didn’t really like Trump either. When her Email scandal was exposed, with all the evidence collected, I was appalled that there were no charges brought against her. She was never held to the same standards that we all are. The Clinton Machine is a dangerous, powerful, corrupt entity. I voted for Trump because he wasn’t a politician. He was a businessman and was not in anyone’s pocket. I became increasingly mortified at the amount of hate, fear, violence and intimidation promoted by the Democrats towards him and his family. The vicious attacks by the MSM. The vulgar, hateful, slanderous attacks by The Hollywood elite and this is all OK in their eyes. I realized then that I made the right choice in walking away. The Liberal Radical Left insanity going on has left me in their toxic dust. This is not the party I knew. I love to listen to Fox News and see civil discussions. I watch the investigations into DOJ and FBI and think to myself that none of this would have ever been exposed had Hillary won, the corruption runs deep. Trump loves America and is truly helping to expose and drain the swamp. I pray for his safety and continued success. The hypocrisy of the left is mind boggling and as long as they promote and defend illegal immigration, intimidation and suppression of free speech, public harassment, hate and violence, I know I can never support or be a part of them again. Thank you for allowing me to join this group. I can finally say what I feel in my heart. I am an American first and I love my Country. #WalkAway I am not a bot!

Rocky says:

Re: Re: Re:5 Techdirt farms remembers

He’s just an unoriginal troll that can’t even be bothered write his own posts. These posts are copied from the Walk Away Campaign-site which is used by the Russian troll-factory to sow dissension.

In conclusion, this means that he either is your average idiot troll with below average IQ that unintentionally helps the Russian troll-factory or that he works at the troll-factory.

Anonymous Coward says:

Re: Re: Re:4 Techdirt farms remembers

I’ve always voted Dem because I grew up in a Union household and married a Union member. I explained to my husband that I could not in good consciousness vote for her. He told me “vote for whoever you want”. And I did. For her to say we voted the way our husbands wanted us to is ridiculous. I am a strong women who thinks for herself. No one tells me who to vote for. As a former Dem, I am ashamed of what this party has become. Liars, thieves, cheats.

Anonymous Coward says:

Re: Re: Re:4 real crosdresser or real fake indian?

Hey hamilton/billy at least this time you remembered to change your IP address. Let me ask you a question. How do you feel about be repeatedly caught shilling for a basic-bitch right wing grift? Is it more or less embarrrasing than shilling for your fraud of a “friend” Shiva?

Anonymous Coward says:

Re: Re: Re:5 real crosdresser or real fake indian?

We don’t fall for identity politics. We are a gay couple who has been together for 20 years. In 2016, we voted for the Republican ticket. It was harder to tell our friends that we were voting Republican than it was telling our family we were gay 20 years ago. We found ourselves stepping out of one closet and stepping into a darker one. Our "friends" knew how we were going to vote leading up to the election. They quickly deleted us from Facebook, sent us nasty and hateful messages, left voice mails on our phone calling us traitors, and immediately dropped us from social events. Like Thanos’ snap, they disappeared within a matter of seconds. These actions just solidified and validated our choice even more. What did we do to respond? Took pictures of us eating Chik-fil-a fries and shopping at Hobby Lobby and shared it. We are voting Republican again in 2020.

Anonymous Coward says:

Re: Re: Re:8 real crosdresser or real fake indian?

Actually I take that back – it’s more then 300 years. Thanks to Ancestry.com, I can trace my family tree back to the 15th century. Hamiltons have been widely acclaimed for their wit and wisdom for centuries before the US even occurred to us (I mean Alexander).

Think about that. Really.

Anonymous Coward says:

Re: Re: Re:9 real crosdresser or real fake indian?

And yet with all that history your biggest accomplishment is masquerading as a cross dresser for a couple of grifters on a 20 year old failure of a website that your “friend” sued and lost against.

Think about the fact that your new nick name is gonna be something along the lines of billy the closet case fraud.


Peter (profile) says:

Actually, the copyright/DMCA-part worked just as it should

Someones files a notice, the content is taken down. If the notice is contested, content goes back up, and the original claimant has to prove their claims in court.

Is there really a better alternative?

What’s plainly wrong here is Barstool resorting to bullying rather than follow the law. That is not copyright, though. And there are other ways to address that.

The really disappointing part of all this? Barstool’s tenacity suggests that the really like Miel Bredouw video. If only they had found ways to express their fondness for her work, this could have been a wonderful story of artists inspiring each other.

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