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DistroKid sued in dispute over allegedly malicious copyright takedown

By | Published on Friday 9 June 2023


DIY distributor DistroKid has been sued as part of a lawsuit over an alleged misuse of the notice-and-takedown system set out in US copyright law.

The distributor is accused of breaching its fiduciary duty to one of its clients by not properly communicating information about and investigating the specifics of a takedown notice that was issued to the streaming services against one of that client’s tracks.

The plaintiffs in the case are an artist called Damien ‘Frosty The Doeman’ Wilson and his label Doeman Music Group. Wilson and his label used the services of DistroKid to get his music onto all the streaming services.

That includes a track called ‘Scary Movie’, which Wilson made in 2020. On the track, he collaborated with another artist called Raquella George.

According to the lawsuit, Wilson paid George to provide “a short clip of her voice” to include in the track, which basically involved her recording some words at his instruction. The track was then released, via DistroKid, with George credited as a contributor.

After the release of ‘Scary Movie’, Wilson and George fell out. And in January 2021, George messaged Wilson via Instagram demanding that her name be removed as an artist on the track. She then allegedly said that, if he didn’t comply with her demand, she would be forced to issue a takedown notice against the recording. Which she then seemingly did.

The notice-and-takedown system is part of the good old copyright safe harbour under US copyright law. Digital platforms are obliged to put in place systems via which copyright owners can have any content stored on those platforms that infringe their rights removed.

Operating such a system is a requirement if the platform wants to avoid liability itself for hosting copyright infringing material.

When US Congress introduced the copyright safe harbour in the 1990s it recognised that those takedown systems could be abused. To that end, the law says that anyone who issues a takedown against a piece of content when they know that they don’t have a legitimate copyright claim can be sued for damages.

It also allows whoever uploaded the content against which a takedown notice has been issued to submit a counter-notice. And, the US Copyright Office explains in a document on all this, “following receipt of a compliant counter-notice, the [platform] must restore access to the material after no less than ten and no more than fourteen business days, unless the original notice sender informs the service provider that it has filed a court action against the user”.

In his lawsuit, Wilson insists that he owns the copyright in ‘Scary Movie’, adding that George never even made any claim to the contrary. Therefore, whatever grievances she may have over being publicly connected to the track, she did not have a right in law to issue a takedown notice under the copyright safe harbour system.

George herself is also named as a defendant in the lawsuit for her alleged misrepresentation and abuse of the takedown system. However, Wilson also reckons that DistroKid did not do enough to protect his interests once the allegedly malicious takedown had been submitted.

It sent him an email confirming that it had been notified about the takedown notice by certain streaming services which had seemingly removed the track.

However, they did not inform Wilson about the specific services that had received the takedown notice nor provide any information regarding where he could send counter-notices. Instead, they said that he would need to contact George to settle the dispute.

The streaming services themselves obviously tend to respond quickly to takedown notices because they don’t want to find themselves being held liable for any copyright infringement.

The distributors, meanwhile, are prone to generally accept takedowns when they occur, and stop artists and labels from redelivering tracks that have previously been subject to takedown notices.

They also don’t want to be accused of copyright infringement, plus they don’t want to annoy any of the streaming services, because that can impact on their rankings with the services, which can in turn impact on their ability to quickly and efficiently deliver content.

Plus, of course, the distributors are under ever more pressure within the music industry to help stop infringement and fraud on the streaming platforms, and responding to and complying with takedowns are part of achieving that.

Meanwhile, DIY distributors like DistroKid – which distribute millions of tracks, usually in return for modest fees charged to the artist or label – want to automate as much of the distribution process as possible. They don’t want to end up spending hours of time investigating and dealing with copyright disputes, and the back and forth of takedown notices and counter-notices.

However, that negatively impacts on independent artists and labels that find their music is being removed from streaming services because of mistaken or malicious takedown notices.

If the issuer of the takedown isn’t compliant, then the artist or label needs to rely on the counter-notice system, not least because of the costs and time associated with pursuing any legal action against whoever issued the takedown.

With all that in mind, Wilson argues that DistroKid breached its fiduciary duty – and an implied covenant of good faith and fair dealing – by failing to provide him with the information and support he and his label needed to fight back against the allegedly malicious takedown.

To what extent such liabilities can be extended to DistroKid in what is primarily a dispute between Wilson and George remains to be seen. But the abuse and misuse of takedown systems is a definite issue, and one that primarily affects independent artists and labels.