The most ridiculous moment during the two months comedian Miel Bredouw spent being harangued and harassed by Barstool Sports came when the site’s lawyers offered her a $50 gift card usable at their online store.
In exchange for rescinding a Digital Media Copyright Act violation she filed in December, after Barstool’s 1.47 million follower-strong Twitter account shamelessly reposted a video she created over two years ago, Bredouw was informed she could obtain items like a skimpy women’s thong with “degrade me” plastered across the front.
Being presented with a gift certificate was “possibly the funniest thing that’s ever happened to me in my life,” Bredouw said, speaking by phone to The Daily Beast.
The entire ordeal wasn’t nearly as humorous.
Over the course of the last five years, the 29-year-old Los Angeles resident has had her content ripped off before by other online entities and has filed many DMCA notices in order to claw back what was rightfully hers, but this was different.
Dave Portnoy, founder of Barstool Sports
Slaven Vlasic/GettyWhen she didn’t respond to the site’s escalating offers, a slew of Barstool accounts bombarded every email address and social media account she owned, to the point where she had to shut down multiple points of contact. Despite making it clear from the beginning that she had no desire to engage with Barstool—and she was under no legal obligation to do so—the situation eventually reached the point where Barstool’s general counsel dangled $2,000. In the end, Barstool filed a counter-notification claim with Twitter, forcing her to choose between filing for an injunction and spending a good amount of money and time standing up for her rights, or letting the satirical men’s sports and lifestyle blog slide.
All of this might have remained unknown, but on the evening of March 4, Bredouw fired off a threaded tweet detailing Barstool’s ham-fisted attempts to both lowball and then coerce her into dropping her claim. The tweets went viral to the point that “Barstool Sports” was trending an hour after the fact.
Bredouw isn’t the only content creator whose work Barstool has allegedly pilfered of late. According to court records, over a three-year period from Jan. 1, 2016 to Dec. 31, 2018, Barstool has been sued 11 times for copyright infringement, largely involving photos which appeared on the main website without payment or attribution. Save for two additional cases which are currently ongoing, Barstool has come to a settlement agreement with the plaintiffs each and every time. (Liebowitz Law Firm, which made its bones suing media companies for copyright violations and has represented all these claimants, did not respond to a request for comment prior to publication.)
A brief glance at Barstool’s main Instagram account, which has amassed 6.6 million followers, reveals a possible reason why their lawyers have logged so many billable hours: The account is littered with video clips that are often unattributed. Even when Barstool has deigned to give a hat-tip to the videos’ purported creator—or at least the individual who sent it their way—they may have been burbling around online for who knows how long. (Deadspin’s Samer Kalaf first noted many highlights tweeted out by Barstool were actually posted by @haveyouseenadog, an account that follows 130 Barstool brands and does nothing but post highlights and other videos without context or credit. Using Twitter’s password reset system, The Daily Beast discovered that it appears to be registered to someone with a barstoolsports.com email address.)
By making her story public, Bredouw realizes she’s potentially subjected herself to additional harassment. “I can handle it,” she said. Of far greater concern is the ongoing manipulations of copyright law and Twitter’s stated policies, which make intellectual property theft online both commonplace and difficult for individual content creators to seek redress. She plans to speak with a few attorneys and discuss possible legal action, though she doesn’t care about the money. “I’m more concerned for all the people that are taken advantage of beyond me,” she said.
Still, Bredouw remains gobsmacked by Barstool’s behavior.
“Unbelievable,” she said, especially coming from a company with a recent $100 million valuation. “Truly, every meaning of that word: unbelievable. It sounds fictional.”
Bredouw’s dealings with Barstool began on Christmas Eve 2018, when a bunch of friends tagged her, letting her know that her video had appeared on Barstool’s main Twitter account. The video in question, originally published in November 2016, shows Bredouw singing the Three Six Mafia song “Slob on my Knob” to the tune of “Carol of the Bells.” Amazingly, the two songs synch up perfectly.
“It’s a really stupid video,” she said.
Were a different site involved, Bredouw might have dunked on them and left it at that. But Barstool’s now-deleted post included the line “follow Barstool @chicks for more content,” she said, suggesting that @chicks, its dedicated vertical for blogs and videos created by its female employees, had created the clip. (In a recent interview with Yahoo!, Barstool CEO Erika Nardini touted the growth of said vertical. Nardini did not respond to an emailed request for comment.) “The really insidious part was the implication that I was somehow associated with Barstool Sports,” said Bredouw. She was appalled because, “I want absolutely nothing to do with Barstool Sports.”
So she filed the DMCA takedown request, and within a half an hour, Twitter complied, removing Barstool’s tweet. Twenty minutes later, she received an email from Chuck Naso, a Barstool social media employee. In the email, which was shared with The Daily Beast, Naso claimed the video had accidentally been posted without credit, asking if Bredouw would retract her DMCA takedown.
Bredouw didn’t respond. Over the next five weeks, she didn’t hear a peep from Barstool and assumed they’d let it go. Far from it. On Feb. 5, Naso emailed her again, this time offering to send out a second, properly credited video of hers on an unspecified Barstool account “for exposure.”
Then, on Feb. 21, Mark Marin, Barstool’s general counsel, jumped into the fray, emailing her with the aforementioned $50 gift certificate in hand. (Marin did not respond to an emailed request for comment.) No matter. Bredouw refused to engage.
Why? “I’m a woman on the internet,” said Bredouw. “Do you know often I get harassed by angry men and how rarely it helps to engage them?”
Barstool, though, wouldn’t take no for an answer. That same day, her personal and business Twitter accounts, Instagram accounts, and email addresses were flooded with “a barrage of messages demanding that I negotiate with them,” as Bredouw described it.
Not all the messages remain in her possession, as her various accounts were bogged down until they were nigh-unusable, but she shared a screenshot of four direct messages sent by the main Barstool account offering her $500 and apologizing for using her work without credit or her consent. When that went unanswered, a slew of Barstool-controlled accounts put her on full blast, barking a one-sentence demand to every possible point of contact she had: “See barstool sports dm.”
Things got so bad, Bredouw was forced to tell her podcast co-host, who had access to some of these accounts: “These people are violently harassing me. Don’t respond to them.”
For a little over a week, it seemed as if the ordeal was finally over.
It wasn’t.
On March 1, Naso emailed her again, upping the offer to $750. On the morning of March 4, Marin put $2,000 on the table. Later that day, she received a notice from Twitter of Barstool’s counter-notification claim. According to Bredouw, Marin tried to rewrite history. In the claim, Marin states under penalty of perjury that Barstool’s tweet with her video had been taken down in error. (This despite Naso’s initial admission that Barstool was at fault.). Bredouw now had 10 business days to file for an injunction in court or the tweet including the video would be restored.
As to why Barstool may have felt this onslaught was necessary, Bredouw believes she has an answer: According to Twitter’s stated copyright policies, a company that receives a certain number of DMCA claims or “strikes” could lose their account altogether, and Barstool may be edging right up against that limit. New York magazine’s Brian Feldman also noted that Barstool’s engagement rates are heavily tied to their popular social media accounts. If they were suspended or deleted altogether, it could inflict serious financial damage.
(In typically opaque Twitter fashion, the company doesn’t make it clear how many strikes an account has before it’s terminated nor does it specify whether getting the complaint withdrawn helps its cause, or offer much in the way of specifics at all. Twitter declined to respond to specific questions when contacted by The Daily Beast. Instead, via email, they passed along a link to Twitter’s copyright policy, “which shares that rights holders or their representatives send DMCA notices to us, we review them, and take action if the content violates our copyright policy,” a spokesperson said.)
There is a method to the seeming madness of Twitter’s inscrutable and vague terms and conditions. Rick Sanders is a Nashville-based attorney who specializes in copyright, trademark and related litigation who previously taught copyright law at Vanderbilt University Law School. Reached by phone, he explained that when it comes to sites which host third-party content—particularly Twitter—the general practice is to take down any disputed material upon receipt of a takedown notification, because doing so absolves the site of legal responsibility.
Those claims are rarely examined carefully, because doing so immediately provides Twitter “a get out of jail free card,” he said.
In a follow-up email, Sanders added that by giving users the chance to file counter-notifications claiming their right to use the disputed material and have content restored, it further permits hosts to dodge any culpability and avoid getting roped into a lawsuit. As long as a set period of time is given to obtain a court order, Twitter can reinstate the tweet or video and say, “We’re off the hook, we’re out of this mess. The fight is now directly between complainant and the customer,” he said.
But filing for an injunction isn’t so easy. Bredouw will need to first register her content with the copyright office and do so quickly, prior to any litigation, thanks to a decision handed down by the Supreme Court on Monday. (Expedited copyrights cost an additional $800, and that’s before she pays a single attorney.) Sanders defended the proper use of DMCA counter claims as a whole, especially in instances where a larger entity is trying to tamp down the fair use of copyrighted material or wants to silence free expression it doesn’t like.
The Electronic Frontier Foundation, a nonprofit advocacy group for online free speech and digital privacy, didn’t mince words.
In an emailed statement, EFF Legal Director Corynne McSherry said: “If these allegations [by Bredouw] are accurate, this seems like a case of DMCA abuse. Whether it’s a notice or a counter-notice, you shouldn’t be invoking the DMCA if you don’t have a reasonable claim.”
Shown evidence that Marin may have fabricated a line about Barstool accidentally deleting its tweet contradicting their prior admissions of fault, Sanders said that while perjury is a crime, enforcing it would be left to prosecutors, and would be highly unlikely. But “if Bredouw were to sue for copyright infringement, perjury by Barstool’s own in-house counsel would be a terrible fact for Barstool,” Sanders said via email. “I can’t imagine trying to explain it in front of a jury. Barstool is essentially banking that it won’t get to that point.”
“Barstool is basically saying ‘we dare you’” to sue, he said.
Some Barstool employees have expressed an un-Barstool-like amount of contrition. Blogger and podcast host Dan Katz said on Barstool Radio that the site should be held accountable for its mistakes; his co-host, Eric Sollenberger, tweeted “we certainly handled this poorly”; and blogger John Feitelberg said if his content were ever stolen, he’d be enraged. On the other hand, blogger and radio host Kevin Clancy asserted that the entire situation had been “wildly overblown,” and Bredouw had “played the harassment card” and “has an axe to grind.” It’s unclear if they were aware, but none of them mentioned Barstool’s prior and ongoing copyright cases.
Founder and chief of content Dave Portnoy, however, chose a somewhat different approach. (Portnoy did not respond to an emailed request for comment.) Initially, he told Business Insider that Barstool should have ceased communications with Bredouw once it was clear she had no intention of responding, while also passing the blame onto his employees, calling some of them “idiots.” (When Barstool has deleted or edited inflammatory blog posts in the past, Portnoy similarly threw his bloggers under the bus.)
“Barstool Sports has idiots in our company much like many other companies and those idiots acted like idiots,” he said. Portnoy also lashed out at Marin, both to Business Insider and in a blog post, describing his actions as “moronic” and saying he’d made the company “look like assholes.”
Portnoy also struggles to remain consistent when it comes to his views on intellectual property laws. He made a serious stink when Barstool’s copyrighted merchandise was purloined by the NFL, and Barstool itself scolded both the media company formerly known as FuckJerry and The Fat Jew for their infamous history of stealing jokes and memes. But in February, Portnoy was asked why a clause had been inserted allowing Barstool to maintain ownership of any ideas or proposals received from participants in its upcoming Shark Tank knockoff show.
In response, Portnoy tweeted: “Cry about it.” When pressed to reconsider, he wrote: “Free advice. If you’re worried about us stealing your idea and think we could just take it and do it better than you it’s prob not that good an idea.”
Come Tuesday afternoon, Portnoy had reverted to form. No longer pointing a finger at others or showing a modicum of remorse, he tweeted an “official statement” addressed to anyone who’d criticized his or Barstool’s behavior, using a clip he did not create:
By the afternoon of March 6, the video Portnoy embedded, featuring the wrestler Ric Flair boasting he is “the dirtiest player in the game,” had been removed. Evidently, the copyright holder reported it to Twitter.
Additional reporting by Timothy Burke
