The company asking podcast directories for money
A copyright enforcement company is sending bills to podcast directories for reproducing thumbnail images from RSS feeds.
The Danish company, Copyright Agent A/S, claims to represent content producers and news agencies. It contacted Podnews on September 20 with a bill for reproducing a podcast thumbnail image from TC Fantasy Football hosted by Spotify for Podcasters.
The podcast’s thumbnail artwork is of an image of Denver Broncos quarterback Tim Tebowis with an Anchor logo placed on top of it. It was - said the company - the copyright of Reuters; and, because we’d not licensed the image, the company said we were automatically liable to a fee of AUD$450 (US $288).
Copyright Agent A/S included a link where we could go and pay them, and/or demonstrate that we had a licence for use of the image - and an email containing 850 vaguely threatening legal words.
$450 is a carefully-chosen amount
We think the company chooses the figure of $450 very purposefully. That’s less than a lawyer would charge to fight Copyright Agent A/S: and legal action in court would clearly cost significantly more than $450. For many companies, it’s “$450 for them to go away” - easier to pay the $450 than to involve expensive lawyers.
Copyright Agent A/S presumably earns commission on the money they’re able to get their clients. That $450 they sent a bill for might be split 50/50 with the rightsholder, perhaps. In any case, it’s in their interest to search for as many infringing images as they can.
It’s also important for their business model that infringing images exist in the first place - because, without infringing images, Copyright Agent A/S wouldn’t exist.
The DMCA’s safe harbor provision: and why they didn’t use it
It’s impossible for podcast directories to check that every user-uploaded image has the correct licences.
So the safe harbor section 512 of the US’s DMCA is clear as to how this works - rightholders should promptly notify Designated Agents at operators of websites that contain user-uploaded material that infringes rights, and operators should promptly remove it.
Spotify has a DMCA takedown information page specifically for this. But, Copyright Agent A/S have not requested removal of the image from Spotify, in spite of Podnews and our lawyer repeatedly pointing them to Spotify’s DMCA procedure.
The cynical observer can guess why Copyright Agent A/S might not request its removal from Spotify even though they’re aware it continues to be on Spotify’s website: because, if they do, they can’t chase non-US podcast indexes and other services for merely reproducing the information held in the RSS feed.
This one podcast could be worth $45,000
Many podcast apps and directories are hosted by companies outside the US; and if we were to guess, we’d presume that there are fifty different directories and a further fifty different apps outside the US’s DMCA safe harbor jurisdiction.
That could mean the company could send 100 separate bills for $450. A quick and simple way to earn $45,000 - and all relying on the open nature of RSS which quickly and efficiently syndicates thumbnail images throughout the network of websites that use them.
But were Copyright Agent A/S to get their thinking caps on, they could deliberately post a licensed thumbnail on a podcast hosting company’s system; submit that show to the podcast directories; and then send these bills to every podcast app and directory who automatically and unwittingly reproduces the image.
While a lawyer may argue that Copyright Agent A/S would be creating an implied license by putting the image on an open server, the entire point of the company - in our opinion - is to be scary enough to get paid, but cheap enough that a lawyer never gets consulted.
Releasing a new podcast each week - the audio itself is irrelevant - could mean the company could send invoices for more than $2mn a year. Quite the business plan. Not that we’re saying they would, you understand: this is entirely theoretical.
How we responded
Podnews removed the page from view as soon as we were notified; sent a link to Spotify’s DMCA takedown procedure, quoted the established case law of Perfect 10 vs Google, and - sniffing a story - said that any responses the company sent would be published, which we regularly reminded them of in our correspondence.
“Melanie” at Copyright Agent A/S - no such person appears on LinkedIn or the company’s website - sent a 1,041-word response, containing muddled references to Australian copyright law. She told us that we could directly hotlink to the original image from the RSS feed, but gave an Australian case law ruling that a hotlink to illegal copies of copyright material was against the law. (It’s also illegal under GDPR law.) Melanie incorrectly thinks Podnews is published by an Australian company; we’re incorporated in Delaware and based in Texas.
Enclosing a PDF on Australian copyright law, she finished with the threat: “As you have not provided proof of licence we will maintain the claim”.
As you may have spotted by now, legal mumbojumbo doesn’t worry us much. We responded, explaining how user-generated material works, and reminding them of established case law.
Melanie responded with another 1,140 words of, we believe, deliberately opaque and dense prose; ignoring the points we made. “Under s115(2) and s115(4), rights holders can claim either damages or an account of profit if their rights have been infringed. This would refer to the economic rights that the rights holder has. The rights holder also has the right to be identified when their work is used under section 196 of this act, which would refer to the moral rights that a rights holder has.” Scary Big Words! She also dropped the price to $300.
We got a bit tired of responding to Melanie. She ignored the points we were making in our emails, and kept using what we felt were confused, muddled responses about Australian copyright law.
Instead of just paying the $300 to make Melanie go away, like a sensible company would, we of course engaged a lawyer. Not just any lawyer: Lindsay Bowen, a lawyer for podcasters, and owner of a fine beard (which, we’re assured has fully regrown after Podcast Movement).
Our bearded lawyer sent a letter to Copyright Agent A/S. “I am personally disappointed as an attorney who has spent most of his career defending the rights of copyright owners, including photographers and agencies. Copyright enforcement is simply not susceptible to mass automation without careful and scrupulous attention to detail.”
And, very quickly, Melanie “forwarded the case to our legal department”. Was the case closed? No, she said, the case wasn’t closed: it might be reopened. “With respect, if the case needs to be reopened, that is because it’s closed. It’s either one or the other,” replied our hirsute lawyer. He’s good.
We’ve still not got any clarification that Copyright Agent A/S has actually closed the case. And, in some respects, they’ve won anyway: we’ve wasted a lot of time, and had to get podcasting’s lawyer involved: all because Copyright Agent A/S hadn’t followed the DMCA takedown procedure with Spotify.
But then, if you’re going to get $2mn from trolling podcast directories, why would you?
