Spotify incident

Dear Spotify Administrator/Coordinator,

   A few days ago, our podcast hosting service (Buzzsprout) informed us that Spotify has taken down our podcast entitled “Golpo-Kothar Asor", in response to some claim that our content infringes on somebody’s intellectual property rights.  Other than the claimant’s name (__Redacted__) and email address (__Redacted__@anandapub.in), no information whatsoever was provided to us.  Such a claim seems sufficiently strange to us that our response is of necessity generic, especially without any grounds being advanced by Spotify on behalf of __Redacted__.  

   Nevertheless, we strongly contest this takedown, and provide, in this email, background information in the format you have specified.  We ask Spotify, on the basis of the information offered in this email, to immediately reinstate our podcast at the soonest, and inform us (and Buzzsprout) of the same by email.

   By this same email, we also reach out to __Redacted__, as the complaining party, to offer our perspective, and invite her/him to withdraw their claim.

(i) Why the Takedown is Contested:

In our podcast, we read and discuss stories from Bengali literature.  A few of our episodes are entirely discussions.  Most episodes are a short discussion followed by reading of a work of literature in part or whole.

While many of the literary works we read are out of copyright (and/or out of print), it is certainly likely that some of the stories we read are under copyright, in some jurisdiction or other; however, this is irrelevant as below.

The name __Redacted__ is unknown to us, but from her/his email address, it appears that (s)he may be employed by Ananda Publishers, a publishing house in the state of West Bengal in India.  We make the reasonable assumption that __Redacted__'s complaint is on behalf of Ananda Publishers.

It is possible that Ananda Publishers holds the current copyright on a minority of the stories we have read on the podcast (although we know for a fact that Ananda Publishers does NOT hold the copyright on a large majority of the stories we have read on our nearly 250 episodes till date); however, this is irrelevant as below.  (As a minor point, Ananda Publishers does NOT hold the copyright on the published works of some of their most popular authors; they only own the right publish and distribute, the copyright being retained by authors’ estates or agents.)

The reason why such copyrights (whoever holds them) are irrelevant to our podcast is that all such copyrights of works we have chosen to read refer to the textual work of literature, and speak to the reproduction of the text, whether by print, digital media, or other mode of copying from which the textual content can in principle be extracted.

In contrast, in our podcast, we provide an AUDIO PERFORMANCE of works of literature.  We are not distributing the textual material in any way, either through print or electronic media - nor it is possible to extract the textual material from our spoken rendition by any extant technology.  Therefore we are not in violation of the copyright as such.  Our readings are all in our own voices, or (in the case of a few episodes) in the voices of a small set of guest readers, performed exclusively for our podcast.  In all cases, our performances are our own, and we hold the copyright to each, respectively.

When such derivative performances are performed for the purpose of charging money to listeners/viewers, there is precedence of requiring approval from the copyright holder of the text, and/or paying royalty.  However, we do not charge for our podcast - or make any money out of it through indirect terms such as advertising.  Buzzsprout, our podcast hosting service, will attest that we have not monetized our podcast, and have received no payment of any kind whatsoever from any source for our podcast.  

Indeed, for us, it is a loss-making endeavor, since we have to pay the costs of hosting the podcast, not to mention other ancillary costs such as for recording or audio equipment.  And our income from the entire endeavor is ZERO.  We publish this podcast entirely for free for all listeners, as a service to raise awareness in Bengali literature.  Till date we have read more than 200 stories by more than 30 authors, whose publication dates range from a hundred and fifty years ago to about fifty years ago.

There is no conceivable way in which any of our activities obligate us to pay any royalty to copyright holders.  Indeed, we consider that our activity, even if in a small way, actually improves the visibility of the corresponding works of literature, and spur sales of printed copies.  While we have no data to support this in this particular case, there is precedence that shows that sales of books increase significantly when performances based on them in alternate media (such as movies or TV shows) become available.

None of the stories we have read were authored by authors now living.  In the absence of the author, the relation with any copyright holders (whether authors’ estates, their agents, or publishers) is entirely legal and monetary, and as we have shown, neither applies to us.

(ii) The Statement of Declaration:

We state under penalty of perjury that we have the necessary rights to post the content found at spotify:show:0U3P7pxB6oHd2V59gVQNo8

(iii) Contact Details:

The following email address will reach us: Kothok Golpo-Kothar Asor <kothok.golpokotha@gmail.com> .  Golpo-Kothar Asor is a non-revenue-generating and non-monetary exercise.  No non-profit 501(c)(3) or for-profit (LLC) incorporation has been deemed applicable to this activity, since we collect absolutely no money from anybody in any way.

Additional Remarks:

While we do not believe Ananda Publishers has the right to limit the scope of our audio performances, we feel no enmity toward Ananda Publishers, and indeed very much appreciate the role they play in providing a platform for Bengali cognoscenti.  While our sincere belief, and our best understanding at law, is that we do not require the permission of Ananda Publishers, or anybody else, for audio readings such as we have been conducting, it is sometimes considered a courtesy to acknowledge the authors, their estates, or publishers, in derivative performances such as ours, even when non-monetized.  We have such remarks included in many of our episodes, including statements of appreciation for Ananda Publishers (among others) in publishing definitive editions, authoritative collections, or archival re-publications.  However, if it will be desirable to Ananda Publishers, we make the good faith offer to make more explicit statements of gratitude to Ananda Publishers in one or more of our upcoming episodes, and to include such statements as a permanent feature on our website, or even bylines of podcast episodes.

While we have access to legal counsel, we have responded privately and personally, in good faith of the good intentions of all concerned parties.  If any legal action ensues, as US persons, we reserve the right to contest in a relevant legal jurisdiction in the United States, such as the State of New York.

Hoping to hear positively from you soon.  Yours, etc.,

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Rudra Dutta, Rajib Ghosh (co-owners, “Golpo-Kothar Asor” podcast)
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Hi,

   Last Friday, we sent this email contesting the takedown of our podcast (within the five-day period provided by you, and in the format requested by you).

   We were wondering if you had had a chance to review this yet, and hopefully decide to reinstate our podcast on your platform.  Our podcast is a completely free, no-revenue-generating, public-service effort for people of our linguistic heritage (Bangla), and as we keep releasing episodes during the holiday season, we are unhappy in the thought that a significant part of our listening public is being blocked from our content due to a frivolous complaint.

    Hoping for a timely reply and positive action by you, Yours, etc.,

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Rudra Dutta, Rajib Ghosh (co-owners, “Golpo-Kothar Asor” podcast)
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Hi,

   This is a last attempt before the holidays to see if you might reinstate our podcast before the holidays; a lot of the people who appreciate and benefit from our performances typically catch up on our podcast during this time of the year.

   It has been two weeks since we sent our rebuttal (see earlier in this thread) in the format required by you.  From the silence on the part of the complaining party, we assume they have no further arguments to advance.  By now, it is probably evident to you that this was a frivolous complaint.  ALL the content in our podcast are performances by ourselves, and copyright on them is held by ourselves.

   We hope for the courtesy of a reply.  We are artists, and our podcast is a creation of love, as well as celebration of our ethnic heritage.  We are surprised a prominent platform such as Spotify is treating us in such cavalier fashion as not to even deign to reply.

   Hoping to hear from you soon, we remain,

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Rudra Dutta, Rajib Ghosh (co-owners, “Golpo-Kothar Asor” podcast)
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Hey Spotify,

   Anybody there ?  You took down our podcast listing at a moment's notice based on a frivolous complaint, then issued us a window of only five days to contest it - which we did, satisfying all your stated requirements (i)-(iii).  And now you cannot even do us the courtesy of a reply for OVER TWO MONTHS ?

   We had heard of Spotify's reputation as being callous about the intellectual and creative rights of the small artists (even though their work together makes up a sizeable chunk of Spotify's content), but we had not imagined that your stated "process" is a barefaced lie.  At this point, it appears to us that you have no process at all for considering the case, or making a judgement, or reinstating or at least giving any details of what evidence you based your judgement on.  Or perhaps even of reading these emails we have been sending, as per your "process".

   For shame.

Dear "__Redacted__",

   This is yet another attempt to request you to respond regarding the claim you made to Spotify in December, 2022, against our podcast.  The only information that was made available to us was:

                 "...the following content infringes the intellectual property rights of __Redacted__."

   The referent to the "following content" was the entire RSS feed of our podcast, which (at the time) comprised more than 250 episodes.

   This claim is baseless, as follows.

1. Audio content.  Every second of every episode of our podcast consists of: predominantly, vocal performance by the readers of Golpo-Kothar Asor (GKA for short), and minor use of musical accompaniment.  All vocal content is original with us, and copyrighted by GKA and the respective readers.  The pieces of music that play as prelude, interlude and background in various episodes are all wholly owned by GKA, were commissioned exclusively for the purpose, with the appropriate transaction documents on file with our counsel. 

2. Original text for the readings.  The works of literature we have read are copyrighted by their respective owners, some are copyright-free at this time.  Non-professional, amateur performances to a non-paying audience is explicitly permitted by Indian Copyright Act and Rules, see https://copyright.gov.in/documents/handbook.html (Bullet "v" (5) under "Does the law allow any use of a work without permission of the owner of the copyright, and, if so, which are they?")

3.  Text for podcast episode descriptions, footers, tags.  All such text is originally authored by GKA, and consist of statements of fact, including factual descriptions of opinions held by GKA.

4.  No other Intellectual Property.  The podcast RSS feed pointed to in the claim contains no other content that may reasonably be considered Intellectual Property.

   We challenge the claimant to specify the specific Intellectual Property that the original complaint claims is violated, and substantiate how you, "__Redacted__", can lay claim to that Intellectual Property.

   Failing which, we request you to denounce and withdraw said claim.

   If you, "__Redacted__", will still not respond, based on the evidence offered above, we request Spotify to dismiss this as a frivolous claim, and reinstate our podcast on the Spotify platform.

   With any and all due respect, yours, etc.,

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Rudra Dutta, Rajib Ghosh (co-owners, “Golpo-Kothar Asor” podcast)
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What now?  As has been demonstrated beyond reasonable doubt, the original claimant "__Redacted__" has either no ability or no intent to respond to defend their original claim of infringement.  Indeed, the claim is so frivolous that it is simply not possible to defend, and we even doubt that "__Redacted__" is any real entity that exists.

We ask, again, that you reinstate our podcast.  Otherwise, this becomes a graphic demonstration that anybody can use the Spotify IP infringement reporting claim to disrupt the distribution of expressions of creative freedom by any creative artists with complete impunity, with no requirement to meet any standards of substantiation whatsoever, and Spotify will simply passively let this happen.  Nobody would be immune to such sneak attacks.  We hope this is not a message Spotify wants to send to the creative community.

We have copied our podcasting host in case technical help is needed to ensure that the episodes we have been publishing on our RSS feed get picked up in the reinstatement.

We sincerely hope Spotify will do what we consider to be the right thing.  Thanks.

I guess I am now talking to a robot which is only programmed to keep saying "We will encourage the claimant to reach out to you" ad infinitum.  To any sane human being it is abundantly clear by now that no matter how many times you reach out, the claimant will not respond.  The evidence we have provided shows that they have no grounds, so the only way they can respond is to admit their mistake and withdraw their wrongful complaint.  But that would require an honorable entity, which our complainant is clearly not.

Pragmatically, the complainant has nothing to gain by admitting to their wrongdoing, it is just the right thing to do.  They have nothing to lose by keeping quiet, since Spotify will just keep "encouraging them to reach out".   It is OUR podcast and OUR listenership that is suffering, although WE have done nothing wrong.  A classic case of externality, enabled by Spotify's impotent policy.  Again, shame on you, Spotify. 

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On Tue, May 16, 2023 at 3:52 PM Infringement Claim Response <infringement-claim-response@spotify.com> wrote:

Hi,

We will encourage the claimant to reach out to you. 

Affected URI:
spotify:show:0U3P7pxB6oHd2V59gVQNo8

Best regards,

Spotify Content Protection