“The New Hotness”: Jukebox Cops and Their DMCA Threat to the First Amendment

*Chase Hoffberger

I. “Record All You Want”

Sergeant David Shelby likely did not anticipate that a video of him queuing up a recording of a Taylor Swift song, during an otherwise unremarkable standoff with activists, would go viral on Twitter and YouTube, but that’s exactly how things played out.[1] Shelby, a sheriff’s deputy within California’s Alameda County Sheriff’s Office, was running crowd containment outside the county’s courthouse during a protest of another killing of a Black man by American police.[2] In the video, Shelby speaks with James Burch, the Anti Police-Terror Project policy director, ostensibly about the efforts Shelby and his colleagues were taking to keep activists from demonstrating where they wanted.[3]

Less than thirty seconds into the recording, Shelby redirects the conversation.[4] Buying some time, Shelby pulls his iPhone from his pocket and thumbs through it to find and begin playing Swift’s 2014 chart-topper “Blank Space.”[5] “Are we having a dance party now?” Burch asks as Swift slides into the hook.[6] “No, sir,” says Shelby.[7] The woman recording the conversation asks if Shelby is playing Swift to “drown out the conversation.”[8] “You can record all you want,” he tells the woman.[9] “I just know that it can’t be posted to YouTube.”[10]

Burch points a finger at Shelby, amused. “This is the new hotness, right here,” Burch says, suggesting that Shelby began playing the Swift song “so they can get a copyright strike.”[11]

II. The Content ID Conundrum

Shelby’s plan failed. The video lives on YouTube today and has nearly 750,000 views.[12] However, the video could disappear at any time. Sites like YouTube, Twitter, and Instagram have elaborate systems to automatically detect and act on such unauthorized uses of copyrighted material.[13] Although videos like the one of Shelby are not yet commonplace, the potential proliferation of such videos could present a unique set of circumstances in eventual First Amendment litigation.

Although the Supreme Court has yet to rule on the right to record police activity, federal circuit courts have found that the right is so “self-evident” that it should be “considered of longstanding vintage.”[14] An individual’s right to publish and promote those recordings can be considered part of that same vintage. As the United States Court of Appeals for the Seventh Circuit concluded in the landmark accountability case American Civil Liberties Union of Illinois v. Alvarez, the right to record police is one thread in the fabric of the First Amendment, including the subsequent dissemination, promotion, and discussion of those recordings.[15]

In the legal reality of such controversies, some American police officers recognize this right while also working to obstruct its practice, often in violation of their departments’ standards and policies.[16] Officers who find themselves in front of civilians’ cameras have worn fake badges to hide their identification, have created human barricades to block civilians’ view of police activity, or have sometimes confiscated cameras altogether.[17]

Shelby’s tactic is novel by comparison, and the media has only covered three instances of it—each from this year. The other two videos came from Beverly Hills cop-watcher Sennett Devermont.[18] In one video, an officer interrupts Devermont’s questions to play the Beatles’ “Yesterday.”[19] In the other video, the officer plays Sublime’s “Santeria.”[20]

These officers hope to trigger a violation of the Digital Millennium Copyright Act (DMCA), the 1998 law designed to offer legal protection to copyright owners against their intellectual property being shared freely on the internet.[21] The DMCA demands an arduous undertaking, tasking file-hosting and social media sites with policing their networks for unauthorized copyright use in third-party recordings.[22] Sites like Twitter, Instagram, and YouTube have embarked on this assignment by creating algorithms that identify potential copyright violations and provide quick action against the violating content.[23] YouTube’s algorithm is called Content ID.[24] Content Identification (Content ID) works like a database of millions of fingerprints, each representing a different digital file.[25] When Content ID matches an old file to a new video, the copyright holder has a choice: get the video struck down or redirect any ad revenue from the infringing video back to the original creator.[26]

It is hard to quantify the success of Content ID. By 2018, Google reported that it had already invested $100 million in Content ID’s database and had paid out $3 billion to rightsholders.[27] Despite this investment, such vast systems have encountered a wealth of functionality problems, from the somewhat comical (a NASA video of the Curiosity rover’s landing on Mars being taken down due to a copyright held by the Scripps media company) to the downright exploitative (scammers extorting content creators by threatening to file enough DMCA claims to shut down their channels).[28]

Exploitation is what one might call the efforts of these music-playing cops: they hope that Taylor Swift’s commitment to controlling her intellectual property will help get activists’ videos struck from social media sites.[29] Indeed, Swift does have a history of steadfastly protecting her property. In 2014, she filed a series of trademark applications on a range of lyrical phrases from her 1989 album.[30] In addition, she helped organize the effort to rewrite the DMCA to conform to twenty-first century technologies and markets.[31] In February 2021, Illinois’ Evermore Park filed a trademark infringement suit against Swift, alleging that Swift’s album Evermore infringed on its marketing and merchandise.[32] Swift counterclaimed, alleging that Evermore Park regularly infringed upon Swift’s songs without a license.[33] The parties eventually dropped their respective lawsuits.[34]

III. A Constitutional Quandary?

First Amendment issues could arise if sites like YouTube, Twitter, and Instagram take DMCA action on these videos. Individuals have a protected right to record police activity and publish videos of those recordings.[35] Police officers taking advantage of the DMCA put activists recording them in a position in which their exercise of that protected activity could violate the DMCA. Ironically, they have done so by using the music of an artist who has spoken out against the kind of police brutality these activists are trying to spotlight[36]—and who may not appreciate the proactive efforts of the police officers just because they are padding her play counts.

*Chase Hoffberger is a second-year, part-time law student at the University of Baltimore School of Law, where he is a Staff Editor for the Law Review and a member of the Royal Graham Shannonhouse III Honor Society. He is also an embedded writer at Meta. Prior to law school, Chase was a city politics reporter and senior editor at the Austin Chronicle, in Austin, Texas. He spent last summer interning with the Baltimore City Office of the Inspector General.

[1] Anti Police-Terror Project, Cop Plays Taylor Swift Video to Prevent Video Sharing of Him Harassing Protestors, YouTube (July 1, 2021), https://www.youtube.com/watch?v=cmZmo81Cdcc.

[2] Katherine Trendacosta, What Cops Understand About Copyright Filters: They Prevent Legal Speech, Elec. Frontier Fed’n (July 16, 2021), https://www.eff.org/deeplinks/2021/07/what-cops-understand-about-copyright-filters-they-prevent-legal-speech.

[3] Melissa Hernandez, Alameda County Deputy Blares Taylor Swift Song During Encounter with Protestors, L.A. Times (July 2, 2021, 1:28 PM), https://www.latimes.com/california/story/2021-07-02/alameda-county-deputy-drowns-out-protesters-with-taylor-swift; Anti Police-Terror Project, supra note 1.

[4] Anti Police-Terror Project, supra note 1.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] E.g., How Content ID Works, Google, https://support.google.com/youtube/answer/2797370 (last visited Dec. 8, 2021).

[14] Jesse Harlan Alderman, Before You Press Record: Unanswered Questions Surrounding the First Amendment Right to Film Public Police Activity, 33 N. Ill. U. L. Rev. 485, 487 (2013); see Glik v. Cunniffe, 655 F.3d 78, 85 (1st Cir. 2011); Fields v. City of Philadelphia, 862 F.3d 353, 362 (3d Cir. 2017); Turner v. Lieutenant Driver, 848 F.3d 678, 690 (5th Cir. 2017).

[15] See ACLU of Ill. v. Alvarez, 679 F.3d 583, 600–01 (7th Cir. 2012) (recalling writers from the colonial era advocating for “the necessity and right of the people to be informed of their governors’ conduct so as to shape their own judgments on ‘Public Matters.’” (citations omitted)).

[16] E.g., Ray Rivera, The Officer Is Real; the Badge May Be an Imposter, N.Y. Times (Nov. 30, 2009), https://www.nytimes.com/2009/12/01/nyregion/01badge.html; Abby Ohlheiser, The Tactics Police Are Using to Prevent Bystander Video, MIT Tech. Rev. (Apr. 30, 2021), https://www.technologyreview.com/2021/04/30/1024325/police-video-filming-prevention-tactics/.

[17] Rivera, supra note 16.

[18] Sennett Devermont (@mrcheckpoint_), Instagram (Feb. 11, 2021), https://www.instagram.com/tv/CLKaLPiDwz2.

[19] Id.

[20] Ian Spiegelman, Activists Say Beverly Hills Cops Are Playing Music to Keep Themselves Off Instagram, L.A. Mag. (Feb. 10, 2021), https://www.lamag.com/citythinkblog/beverly-hills-cops-sublime/.

[21] See generally Andrew Johnson, Comment, Down With the DMCA, 15 SMU Sci. & Tech. L. Rev. 525, 537 (2012).

[22] Id.

[23] E.g., Updates and Guidelines for Including Music in Video, Instagram (May 20, 2020), https://about.instagram.com/blog/announcements/updates-and-guidelines-for-including-music-in-video; Copyright Policy, Twitter, https://help.twitter.com/en/rules-and-policies/copyright-policy (last visited Dec. 8, 2021).

[24] How Content ID Works, supra note 13.

[25] Id.

[26] Id.

[27] Google, How Google Fights Piracy 13 (2018), https://blog.google/documents/25/GO806_Google_FightsPiracy_eReader_final.pdf.

[28] Timothy B. Lee, As Curiosity Touches Down on Mars, Video Is Taken Down from YouTube, Ars Technica (Aug. 6, 2012, 6:10 PM), https://arstechnica.com/tech-policy/2012/08/as-curiosity-touches-down-on-mars-video-is-taken-down-from-youtube/; Shoshana Wodinsky, YouTube’s Copyright Strikes Have Become a Tool for Extortion, The Verge (Feb. 11, 2019, 8:20 AM), https://www.theverge.com/2019/2/11/18220032/youtube-copystrike-blackmail-three-strikes-copyright-violation.

[29] Anti Police-Terror Project, supra note 1.

[30] Caitlin Conway, Comment, Taylor Swift to Trademarks: You Belong to Me – Does Intellectual Property Leave a Blank Space for the Protection of Short Phrases Taken from Song Lyrics, 20 Intell. Prop. L. Bull. 63, 63 (2016).

[31] Daniel Kreeps, Taylor Swift, McCartney Sign Petition for Digital Copyright Reform, Rolling Stone (June 20, 2016, 2:08 PM), https://www.rollingstone.com/music/music-news/taylor-swift-mccartney-sign-petition-for-digital-copyright-reform-178075/.

[32] Althea Legaspi, Taylor Swift, Evermore Park Drop Respective Lawsuit Infringement Lawsuits, Rolling Stone (Mar. 24, 2021, 11:46 PM), https://www.rollingstone.com/music/music-news/taylor-swift-evermore-park-copyright-infringement-lawsuits-dropped-1146582/.

[33] Id.

[34] Id.

[35] ACLU of Ill. v. Alvarez, 679 F.3d 583, 600–01, 608 (7th Cir. 2012).

[36] Taylor Swift (@taylorswift13), Twitter (June 9, 2020, 3:09 PM), https://twitter.com/taylorswift13/status/1270432961591205888.

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