In response to a recent social media dustup, Mike Masnick writes on Techdirt, “…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.”
To his credit, Masnick does a solid job describing both the circumstances and the legal mechanisms relevant to a conflict that arose when a media company called Barstool Sports published a video made by writer/performer Miel Bredouw without permission, even posting the work as though it were their property. But I disagree with Masnick that this is a tale about why copyright is a “total mess” because it’s really a tale about why social media is a total mess with a twist—that when anti-copyright pundits describe weaknesses in the law, they may inadvertently point to how it can be strengthened. In fact, the lessons to be learned from this anecdote are instructive in ways I’m not surprised Masnick overlooked because, as I see it, this is a tale of two appropriations, and the contrasts between them are significant.
To recap as briefly as possible, Bredouw had an afflatus. She noticed that the lyrics to “Slob on My Nob” by Three 6 Mafia fit rather neatly into the melody “Carol of the Bells” and decided to demonstrate this by recording herself performing the musical mashup in a brief video she posted to her YouTube channel. Barstool Sports—run by a group of dudes who seem to be universally recognized as assholes—published Bredouw’s video to their Twitter account as though it were their own (i.e. uncredited). When Bredouw asked that they credit her, she was ignored and so responded by submitting a DMCA takedown notice to have the video removed. Twitter processed the notice and removed the video, and then Barstool got bitchy.
Apparently not the company’s first copyright strike, and seemingly fearful that their account could be terminated, Barstool sought to convince Bredouw to rescind her takedown notice by engaging in a fairly typical evolution of behavior, escalating from apologizing to begging to harassing her on all her social media accounts with bro-fans insisting that she stop ignoring Barstool’s demands for resolution. At the begging stage, Barstool even offered Bredouw $2,000, which she waved at on principle.
Thus, Barstool took its only course of action to mitigate the copyright strike and filed a (technically invalid) DMCA Counter Notice. By statute, the counter-notice procedure requires that a platform restore an allegedly-infringing file within 10 days, unless the copyright owner provides proof that they have proceeded with legal action against the alleged infringer.
Clearly, an underlying factor in this case is that Bredouw did not (and would never) register a copyright in her brief video performance; but that doesn’t make the story any less instructive. At the same time, it should be noted that were this a conflict that could lead to litigation, Barstool Sports would very likely be held to have violated the law under penalty of perjury when it filed an invalid counter-notice to restore a video it had no reason to claim was removed in error.
A Tale of Two Appropriations
It is a fun fact that tech pundits, including Masnick, have spent years attacking copyright on behalf of appropriations like those made by Bredouw while ignoring the much more problematic appropriations like the one made by Barstool. Bredouw made use of two creative works* and combined these in a recorded performance that, under slightly different circumstances, would likely be considered fair use as a parodic commentary on both works and distributed in a manner that is not likely to cause harm to the market value of either work. In short, it is the kind of creative expression the anti-copyright crowd loves to cite anecdotally as evidence that, “on the internet we are all creators,” meaning that people like Bredouw should not be targets of takedowns.
But the thing is that most copyright owners do not have a problem with uses like Bredouw’s video. They often enjoy these mashups and parodies; and even when they don’t like them, many copyright owners are well-enough informed about fair use to let such uses remain online without response. But the outright theft of material made by a commercial enterprise, like Barstool simply taking Bredouw’s video, is exactly the kind of appropriation that tens of thousands of copyright owners have a huge problem addressing online. Just ask any composer or professional photographer how often they find a business entity using their work, without license, for marketing purposes.
Meanwhile, inasmuch as Masnick is willing to call the dudes at Barstool a bunch of asshats, he does not take any responsibility for playing a substantive role in evangelizing the very culture that results in their behavior. The anti-copyright, sharing-is-caring, everybody’s-a-creator-now bullshit that Techdirt, the EFF, et al have been slinging into the atmosphere for years is constituent to the fact that even mainstream, commercial operators feel entitled to just take creative works and tell authors to go screw themselves. In general, the copyright critics have been claiming to speak for the Bredouws of the web while (perhaps inadvertently) empowering the Barstools all along.
So, one simple response to this type of appropriation is a change to the internal culture and practices of business enterprises. If Barstool found itself inching toward account termination for accumulating too many copyright strikes, one solution would be to stop using material they know is not theirs! (No doubt there’s a sports analogy that would explain the concept.) But of course copyright owners cannot rely on commercial users to just do the right thing. So, then what?
Well, oddly enough, Masnick provides one clue when he writes, “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.” He’s absolutely right. The counter-notice procedure, as it stands, leaves small and independent copyright owners with a nearly-toothless remedy in the DMCA; so perhaps this is one area of the 1998 statute that is overdue for revision. For example, if a platform is allowed to review and reject a takedown request that looks illegitimate, why can’t it do the same thing with a counter-notice?
That said, while I would disagree with Masnick’s use of the term “total mess” in this case, he is correct to imply that neither copyright law in general, nor the DMCA in particular, can adequately protect the limited scope of authorship entailed in Bredouw’s small video against a corporate entity’s smug appropriation of her work. The DMCA simply was not written to anticipate small-scale appropriation of works that authors would never register for copyright. And while it is admittedly not easy to develop an ideal—let alone universal—solution to address this strata of infringement, that is no excuse to call copyright wholly incompatible with “the way the web works today,” as Masnick claims.
To the contrary, the way the web works today for countless copyright owners, whose works are registered, is that the DMCA is a game of chicken the rights holder plays with the infringer in which the latter often assumes that the former lacks the resources to sue. Meanwhile, the major platforms have reaped the rewards while pundits like Masnick have told the rights holders to “quit whining and embrace the future.”
Really? Because stay tuned. The conversation about “the future” is already shifting from the appropriation of someone’s video or song or photograph to Silicon Valley’s disruption of food, medicine, transportation, infrastructure, etc. So, maybe if we fix (meaning strengthen) copyright enforcement online, that policy process will provide some clues as to how we might avoid careening into a state of technological feudalism.
*For the purpose of this discussion, the copyright status of “Carol of the Bells” is irrelevant.
Also see Rick Sanders’s post.
