A New Kind of DMCA Abuse? Or Just Things Working as They Should?

Earlier this week, a spotlight was shined on a fairly obscure part of the Digital Millennium Copyright Act (DMCA). It involved a comedian, a funny video she made, a song called (I’m assured) “Slob on My Nob,” the Carol of the Bells, and some media company called Barstool Sports. You can read the story in any number of outlets, but I’m going to link to this one by the Daily Beast because I’m quoted. The best legal take is by Mike Masnick at Techdirt because he understands how the relevant law works. Most other takes I’ve read are some variety of “Isn’t the DMCA terrible!” or “Twitter sucks!” Which, maybe it is, but they are still mostly very bad takes. I’ll explain.
As far as I can piece it together, the comedian, Miel Bredouw, seemingly as a lark, videotaped herself singing the lyrics of “Slob on My Nob” to the tune of Carol of the Bells. Lots of people thought it really funny and retweeted Bredouw’s tweet featuring the video. Barstool Sports also thought it was funny, but it didn’t retweet it. It tweeted it as thought it were its own content.
Bredouw objected and did something that most of you will find legally familiar. She sent Twitter a DMCA takedown notification34Remember, it’s always a “notification,” never a “notice.”, Twitter took the Barstool tweet and video down. Simple.
Then things got kind of weird. As recited by Bredouw in documented detail that would make a lawyer proud, Barstool sports got kind of desperate. It kept offering her stuff in exchange for a license to the video. At first it was gift cards for Barstool merchandise35Seriously?, but became actual amounts of money that you have to at least consider. The final offer was $2000! In the meantime, random dudes start harassing/pressuring her on her social media accounts. Bredouw wasn’t interested. She didn’t like Barstool—turns out, lots of people don’t like Barstool36That’s the outrage biz, right?—and the harassment didn’t sweeten her sentiment one bit.
Barstool’s desperation explains its confused and counterproductive strategy. For example, harassing the person you’re trying to negotiate with is stupid when that person holds the cards. But why the desperation in the first place? Why not just let it go? Well, that’s no secret, thanks to Barstool itself. You see, although Barstool was, legally speaking, asking Bredouw for a non-exclusive license to publicly display her video, it actually couched its request as “retract[ing] the DMCA [takedown] notice37Dangit. It’s ”notification“ not ”notice.“ Read the statute![/ref].” Barstool was really worried about something. It was worried that Twitter would ban it. Since Barstool’s business model relies heavily on social media, even a temporary absence from Twitter could really hurt Barstool.

The Thrill of Counter-Notifications. The Agony of Repeat-Infringer Policies

Let’s pause to consider why Barstool was worried about being banned. That’s because Twitter has a “repeat infringer policy.” It has to. Remember that Cox Communications case I blogged about so much? Yeah, that’s why. Now, Twitter has a lot of leeway about what the policy says and how it’s implemented, but it has to have teeth. There must be the real possibility that bad actors will get banned. And somehow, despite building its business on other people’s social media platforms, Barstool only seemed to discover this when Bredouw exercised her rights.38There is a rumor that whatever the limit to Twitter’s patience is, Barstool realized it was getting perilously close to it.
Barstool, however, seemed to learn something else from reading about the DMCA. It learned about the magic of “counter-notifications.” If a rights holder uses a DMCA takedown notification to have your content removed, you can have the content put back if you send a DMCA counter-notification. You send it to same person you’d send a DMCA takedown notification to. The platform operator—Twitter, in this case—turns around to the complainant, presents them with your counter-notification and says, “You’ve got 10 days to file an action seeking a court order, and to tell us about it, or else it’s going back up.”
There are, however, a couple of catches:

  1. You must say who you are, where you can be served with process, and that you consent to the jurisdiction of your home U.S. District Court.
  2. You must say under penalty of perjury that it’s all a big mistake.

Now, normally, the first “catch” is the real stopper. You’re saying: “Here I am! Come at me, bro!” What if you wish to remain anonymous? What if you’re not very big and can’t afford the lawsuit you’re inviting? But Barstool is pretty big—and obviously desperate—so that wasn’t going to deter it.

Mistakes Were Made

The other catch is a problem for Barstool. It wasn’t a big mistake. And, by “mistake,” I don’t mean some honest, “Whoopsie! I did a dumb thing!” I mean: you actually had a right to post the content, and the complainant is the one making a big mistake. But Bredouw didn’t make a big mistake. She made the video. She is the copyright owner of the video. No one can publicly perform it without her permission. She didn’t give Barstool her permission.
What excuse does Barstool have for publicly displaying the video? Does it have a license from Bredouw? No. Is it fair use? I really don’t think so. Oh, wait, Barstool gives us its reason in its counter-notifications. Let’s see what it has to say:

We believe that this material was removed as a result of an error39Whose?. The content shown in the video was sent to use from a user who claimed to have full rights to license and assign the content to us to post to our account.

Lawyers are so funny. This one thinks that the “mistake” can be Barstool’s mistake, not just Bredouw’s. If that were the case, DMCA takedown notifications would be meaningless, because everyone would just pretend they’re just unfathomably ignorant of the basics of copyright law and get material put right back. No, the mistake has to be Bredouw’s, and she didn’t make one.
Let’s say someone claims to own the rights to some copyrighted work, and you believe that person, and you do stuff with the copyrighted work, but it turns out that person was lying or even just honestly mistaken. Are you off the hook for copyright infringement? No. Not even if it was all an honest mistake. Honesty might go to damages (under the right circumstances), but it won’t go to liability. Yes, playing with copyrighted material whose provenance you’re not sure about is a little like playing with a toy you found on a playground. It might be fun to play with, and maybe no one will mind, but it might make you really, really sick.
So, here’s where the outrage comes in. And it’s justified to an extent. It sure looks like Barstool is lying, under penalty of perjury, and it looks like it’ll get away with it because Bredouw is unlikely to 1) go find a lawyer in New York City40Where Barstool is based., 2) pay $800+41Normally, the cost to register a work is fairly nominal, but if you’re in a hurry—and Bredouw remember had only 10 days—you need to pay extra, a lot extra. to get her video registered with the U.S. Copyright Office42Bredouw obtained copyright in the video the moment she filmed it, but she can’t enforce it in court unless she registers it first, as Tara explained earlier this week in a different context., and 3) file a suit against Barstool (which, remember, is fairly large) seeking an injunction forcing Barstool to take the video down.43Note she doesn’t need to show Twitter an injunction to stop it from putting the video back, just a complaint seeking the injunction. I’m honestly not sure what would happen if she filed the suit, then dismissed it. That would satisfy the letter of the law, if not the spirit, so it seems like cheating.
For her part, Bredouw seems satisfied that she’s made her point. And that’s her call.

But, why is it like this? Isn’t this a failure of the DMCA? Doesn’t Twitter suck?

OK, let’s go on a journey to about 1998. Congress is debating the DMCA, and in particular what is now § 512 of the Copyright Act. The Internet is well-established. It’s nothing like it is today, but it’s obvious where it might go.44We were very optimistic about the possibilities. It didn’t all work out the way we hoped. One of the Internet’s obvious benefits was the ability to store and share content. At the time, that meant bulletin boards and the like. Video couldn’t be played very reliably. YouTube itself wasn’t going to be founded for another seven years. Because of some lawsuits earlier in the 90’s, Congress was concerned that companies hosting such platforms might be liable for contributory or vicarious copyright infringement by hosting its user’s content, if that content were infringing.
Contributory copyright infringement arises if three things are proven: 1) someone is engaged in infringing activity (this is the “direct infringement”); 2) you are helping—providing material assistance to—the infringing activity; and 3) you know about the infringing activity. Vicarious copyright infringement arises if 1) there is direct infringement by someone else, 2) you benefit directly from the infringing activity, and 3) you can step in and stop it if you wanted to. These are collectively known as “secondary copyright liability.” As an economist would point out, they’re really efficient causes of action where there is lots of infringement, because you can stop the infringement at its source by suing the one party that controls or enables the infringement.
But Congress worried that nascent internet-based companies would be overwhelmed with claims of contributory or vicarious copyright infringement. Either they would be sued out of existence, or they would have to expend so many resources policing their user’s content that they’d never make any profit. At the same time, Congress didn’t want to give internet companies blanket immunity because of the efficiencies involved. It hit upon a compromise. Rights holders would have a streamlined way to having their content removed: the DMCA takedown notification. Compared to filing a lawsuit, this is a lot easier!
But what if the user had a right to use the content? The user might have a license that the rights holder wasn’t aware of (that’s not far-fetched at all—major rights holders barely know what copyrights they own, let alone what rights they’ve licensed to whom). The user might reasonably believe it’s co-owner of the copyright. Or the user might think the use is a fair use. So, Congress came up with the DMCA counter-notification. If the user gives the internet company a counter-notification, the internet company can put the material back and be done with it. It is completely immune. If the rights holder wants the content down, it’ll have to file a lawsuit—but against the user, not the internet company.
Now, the internet company doesn’t have to comply with either type of notification, if it doesn’t mind taking a risk. The incentive to take material down in response to a DMCA takedown notification is fairly clear. No liability. If you ignore it, you might be sued for contributory or vicarious copyright infringement. This incentive is so great that hardly any internet company ever scrutinizes DMCA takedown notifications. It’s just so much easier to just take it down.
The incentive to comply with counter-notifications is rather more obscure. In the statute, if you comply with a counter-notification, you are immunized not only from lawsuits by the rights owner—which you would be whether you complied or not—but also from suits by the user for taking the content down. Like what? Maybe the user’s business was highly dependent on the content somehow? But even if it was, that sounds like a breach of contract, and no internet company is going to enter into a contract guaranteeing the persistence of content. To the contrary, internet companies are going to require their customers to agree that the internet company can take any content down for any reason at any time.
I am certain Twitter makes all us agree to a provision like that. If that’s true, then Twitter has no reason to implement a counter-notification procedure whatsoever. Tough beans. There’s another incentive, however. Plain old customer service. Twitter just wants for its customers to have this option, and by complying with the law, Twitter is able to provide this service while retaining its immunity against being sued by the rights holder.
The DMCA notification/counter-notification procedure is not much loved. Rights holders hate it because it’s too persnickety. They can’t just demand an internet company remove all instances of a work, but instead they have to specify each instance, every time it pops up. (But it’s still better than having to sue, right? Or maybe not? Perhaps it depends on how many copyrights you’re trying to keep track of.) Internet companies hate it because it’s just a cost without a benefit. (But it’s still better than being sued, right? Or maybe not?) Users hate it because rights holders (and internet companies) seem thoughtless and sometimes malicious. One may debate whether internet companies really need the protections any longer—they’re all pretty big now, right? In a funny way, the internet companies might not mind so much. After all, they’re big enough to deal with the lawsuits and to police their users’ content, but a smaller potential competitor wouldn’t stand a chance.

The Nowhere Statute

I guess I feel kind of sorry for the DMCA. It’s the Jeremy Hillary Boob Ph.D. of the law world. I’d suggest improvements, but I’d rather people keep hating the DMCA than hating me.
Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.