When it comes to uploading stuff to the internet, I think it’s safe to say that we, as a society, have unanimously settled on forgiveness instead of permission. Unless you’re a professional operation with lots of legal exposure, you’re probably not contacting rights holders for permission to re-upload their stuff. Hell, a lot of the time, it’s impossible to accurately determine the source of a funny video or incredible clip.
But if you are, for some reason, a professional organization (in this economy?!), it’s important to put in the work. We’ve recently seen the importance of crediting creators in the backlash to FuckJerry, a popular Instagram account that grew into a marketing agency that stole memes on behalf of corporate clients and to grow its own presence without acknowledging or getting permission from the original poster. FuckJerry’s M.O. is not unique in the social media sphere; plenty of other companies and popular accounts follow the same practice, including Barstool Sports.
Barstool’s ethos is that of the most annoying frat bro you’ve met. Its purview is technically sports commentary, though the site is also known for finding any excuse to post pictures of women or comment on their attractiveness, and recycle jokes posted online by other people. Its fans and defenders can be aggressive in protecting the site’s misogyny and general political incorrectness on behalf of its staff, which often implicitly or explicitly encourages the harassment of its critics. When it was acquired by a larger publisher in 2017, Barstool president Dave Portnoy described the site as “very profitable.”
Part of that profitability is driven by Barstool’s substantial social media presence — it has 1.47 million Twitter followers on its main Twitter account and 6.6 million on Instagram. Like most major media organizations, it also administrates a constellation of smaller accounts as well. Much of that presence it built on the work of others, including people like Miel Bredouw, a comedy writer and podcaster in Los Angeles.
In a Twitter thread that went viral yesterday afternoon, Bredouw narrated what happened after Barstool ripped and re-uploaded a video she recorded last year (which she said, with slight embarrassment, was a clip of her singing Three 6 Mafia’s “Slob On My Knob” over the instrumentals from “Carol of the Bells”).
Bredouw asked to be credited for the video, and her request was ignored, so she filed a takedown in accordance with the Digital Millennium Copyright Act, an antiquated piece of legislation that dictates how platforms like Twitter handle intellectual property online. When a DMCA takedown request is filed — when someone says “actually, I hold the rights to this content” — Twitter is required to act with expediency to take that content down. Part of filing a takedown involves declaring the request is accurate under penalty of perjury. As part of the process, she submitted the original video clip, which was uploaded to Twitter in the summer of 2016.
On many platforms, including Twitter, accounts that accrue too many DMCA takedowns, known as “strikes,” become in danger of having their accounts shut down entirely. For a company like Barstool, whose traffic and community engagement is heavily reliant on social platforms, having their account shut down could be a death sentence. So, in an increasingly desperate series of offers, they asked Bredouw to retract the takedown, first offering a $50 gift card to the Barstool merch store, then promotion for her podcast, and eventually $2,000. Bredouw didn’t respond to the messages, and eventually received dozens of DMs from Barstool’s secondary accounts, a flood that made both her individual account and the one she uses to help plan her podcast unusable.
This culminated with Barstool’s general counsel Mark Marin filing a DMCA counter-notice, asserting that, contrary to Bredouw’s claim, Barstool has the right to host the video clip. “I swear under penalty of perjury that I have a good faith belief that the material was removed or disable [sic] as a result of a mistake or misidentification of the material to be removed or disabled,” Marin wrote in a garbled sentence.
The thing about filing a counterclaim like Barstool did is that it elevates the copyright dispute from the private sphere (in which Twitter calls the shots) to the public sphere (in which a federal court adjudicates). “Please think twice before submitting a claim or counter-notice, especially if you are unsure whether you are the actual rights holder or authorized to act on a rights holder’s behalf,” Twitter’s copyright policy states. “There are legal and financial consequences for fraudulent and/or bad faith submissions.”
Bredouw said that she is receiving some legal advice now, but noted that she has gotten this far mainly on the strength of her online following. “Why doesn’t Twitter have the infrastructure to talk to a real person?” she wondered over the phone yesterday. The counter-notice email she received did not give her a point of contact. “It is wild that I cannot talk to a real person about this.”
The problem with current copyright law is that it did not adequately anticipate a media-saturated online ecosystem in which regular users without legal departments and general counsel might need to assert their property rights. According to the United States Copyright Office, “unless the copyright owner files an action seeking a court order against the subscriber, the service provider must put the material back up within 10–14 business days after receiving the counter notification.” In other words, Bredouw, an individual, now needs to take Barstool, a well-funded corporation, to court.
Marin did not respond to an email seeking comment, but I did receive a statement from Barstool president Dave Portnoy, which cast his staff and his general counsel as careless and bumbling in trying to contact Bredouw: “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. Unfortunately Barstool Sports has idiots in our company much like many other companies and those idiots acted like idiots.” (Portnoy, the site’s president, will turn 42 years old later this month. Marin’s LinkedIn profile describes him as a “business-savvy attorney with 15+ years of diverse experience.”)
“We try our best to make sure the people who send us videos have the rights before we post anything. We make them fill out paperwork saying they own it. However it’s not a full proof plan [sic],” Portnoy wrote. “But our intent is never to steal other people’s content. Miel never once notified us that we had illegally posted her video.” Screenshots she posted yesterday, showing messages requesting that they credit her, say otherwise.
Even assuming a best-case scenario — that Bredouw’s video was submitted to Barstool by someone else and Barstool assumed the submitter held the rights to the clip — doesn’t explain why Marin filed a counterclaim under penalty of perjury. (I asked Portnoy if Barstool would abandon its counterclaim but have not heard back.) Theoretically, Barstool could use its legal muscle to keep the freebooted video up while the legalities get sorted out.
“We found one person had no interest in a settlement and we were too stupid to let it go. Illegal? No. Stupid? Very,” Portnoy wrote. “The only thing our people were guilty of is continuing to contact her when it was very clear she had no interest in talking to us.”
Still, that Barstool supposedly reached out to her “in good faith” but did not receive an answer does not automatically entitle them to keep the clip up through protracted legal maneuvers. Yet it’s impossible to deny that the copyright system on Twitter (and most platforms) favors the party with less shame and deeper pockets.