Is Barstool Sports Treating Copyright Infringement Like a Game?
Barstool Sports brands itself as a "sports and pop culture blog covering the latest news and viral highlights of each and everyday with blogs, videos and podcast." Everything from its name to its casual grammatical errors to its favorite subject matters seems curated to appeal to a specific demographic: bros who want to hear all about sports gossip and pop culture and less about actual sports.
Barstool Sports survives on "bold" takes and has been no stranger to controversy over the years. For example, take Barstool Sports' founder Dave Portnoy's history of making racially insensitive "jokes" and the culture of casual bigotry that Portnoy enabled and even encouraged. There's also the history of misogynistic comments and vitriol against female reporters that ended up getting Barstool's show on ESPN canceled after a single episode. There's the fact that Portnoy has effectively weaponized Barstool's most devoted fans – or "Stoolies," as they prefer to be called – and directed them to harass anyone critical of Barstool or Portnoy himself. And then there's the ... creative interpretation of intellectual property.
Barstool Sports has long been criticized for its taking and reposting of content without the permission of its creators. For example, The Daily Beast wrote an article in March, 2019 about an incident in which Barstool Sports posted a comedian's video without permission, tried to buy her off with a $50 gift card to their store, and then allegedly engaged in a monthslong harassment campaign against her. This was probably the most high-profile incident, but it was far from the first or the last.
Barstool was sued for copyright infringement 11 times between January, 2016 and December, 2018, and they reportedly settled with at least nine of the plaintiffs.
The latest article from the Daily Beast about Barstool Sports alleges that the company has shifted to a different, potentially shadier approach to content collection. According to the Daily Beast's investigation, Barstool Sports has allegedly shifted its tactics toward something resembling money laundering. Except, you know, with dumb jokes and sports clips.
Twitter (X) will take down content that violates the Digital Media Copyright Act (DMCA) if the content gets reported (because it's the law), and they give the offending accounts a "strike" for each violation. Twitter will eventually ban accounts that rack up enough strikes. This is bad news for accounts that persistently take and post content without the permission of the copyright holder.
Barstool Sports' various social media accounts are currently as active as they've ever been. That must mean they've learned their lesson, right? Their accounts would be taken down if they kept getting DMCA strikes. Surely Dave Portnoy settled all those copyright infringement lawsuits and thought, "Hey, maybe we should just play by the rules from now on. After all, monetizing someone else's content without asking, attributing the content to them, or compensating them is both mean and illegal, and Barstool Sports is valued at over $600 million. Surely we can afford to do this the right way."
Yeah. About that.
If the Daily Beast's investigations are accurate, Barstool's lack of DMCA strikes isn't a result of a sea change in their corporate content policy. No, it seems as though Barstool may be evading fatal DMCA strikes by "laundering" their content using a convenient loophole in Twitter's user policies.
The Daily Beast's investigation found over 40 sock-puppet accounts that appear to do nothing but follow Barstool Sports accounts, get copyrighted material from around the internet, and post it on their own pages. Once the content was posted, official Barstool Sports accounts would then embed and share the content on their own pages. This way Barstool can technically claim that they were just reposting content, and that the original posters are the ones at fault for any copyright infringement.
The sock-puppet accounts — also run by Barstool — effectively act as shields that absorb any DMCA complaints, letting Barstool allegedly commit copyright infringement twice and not get punished for either. They don't care if a random account gets banned, it'd only take a few seconds to make a new one. And while copyright infringement is still illegal, and plaintiffs could theoretically prove the connection between Barstool and its puppet accounts, this new approach keeps Twitter off their backs while they benefit, figuring that the copyright holders will not go to the effort to hold them accountable.
Copyright law is confusing, especially in this age of endless copies, reposts, memes, and remixes. If the Daily Beast is correct, Barstool is taking advantage of a loophole. Monetizing someone else's content without permission, attribution, or compensation is illegal, but Barstool Sports is allegedly building its business and brand by doing just that.
That's deeply un-chill, bro.
- Intellectual Property and Business (FindLaw's Learn About the Law)
- What May Be Covered by Copyrights? (FindLaw's Learn About the Law)
- How Not to Get Sued as a Social Media Influencer (FindLaw's Law and Daily Life)
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