Incident 141: California Police Turned on Music to Allegedly Trigger Instagram’s DCMA to Avoid Being Live-Streamed
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We don’t know if Beverly Hills Police Department (BHPD) Sergeant Billy Fair practices Santeria (or owns a crystal ball), but we know he listens to the Sublime song of the same name. We know this because he’s become a viral sensation on Instagram after blasting the 1990’s hit at a citizen in a misguided attempt to get Instagram’s algorithm to take down a live stream due to copyright infringement.
Ironically, the officer of the law isn’t very clear on the social media site’s rules. But we’ll get to that in a bit.
Background:This story comes to us from Vice’s Dexter Thomas via the Instagram account of one Sennett Devermont, the citizen on the receiving end of the cop’s silly attempt to game the system.
In the post linked above, we can see video of Sergeant Fair employing the old crank up the music so you can’t hear your parents yelling at you to clean your room tactic as soon as Devermont starts asking too many questions.
Thomas’ reporting makes it clear that this isn’t an isolated incident within the Beverly Hills community, but instead both Fair and other officers have deployed this tactic. One officer is even quoted as not only having knowledge of Devermont’s IG account, but going so far as to mockingly bring up negative comments on posts involving the citizen’s interactions with BHPD.
Laws and rules: The law says that, for the most part, it’s cool for people in California to film law enforcement officers. And, despite what you might believe, Instagram’s rules say that, for the most part, it’s cool for you to post a video that has short moments of copyrighted music playing through it.
Quick take: What we have here is a case of officers of the law trying to weaponize the legal protections a private company is forced to take in order to adhere to the law, against a citizen expressing their Constitutionally-protected right to record the cops under the First Amendment.
And I’ll leave it to you to decide whether protecting police officers from the consequences of their own actions or upholding the will detailed in the US’ founding documents is more important.
Last Friday, a man entered the Beverly Hills police department, only to be treated to a mini DJ set that could potentially get his Instagram account banned.
Sennett Devermont was at the department to file a form to obtain body camera footage from an incident in which he received a ticket he felt was unfair. Devermont also happens to be a well-known LA area activist, who regularly live-streams protests and interactions with the police to his more than 300,000 followers on Instagram.
So, he streamed this visit as well—and that’s when things got weird.
In a video posted on his Instagram account, we see a mostly cordial conversation between Devermont and BHPD Sgt. Billy Fair turn a corner when Fair becomes upset that Devermont is live-streaming the interaction, including showing work contact information for another officer. Fair asks how many people are watching, to which Devermont replies, “Enough.”
Fair then stops answering questions, pulls out his phone, and starts silently swiping around—and that’s when the ska music starts playing.
Fair boosts the volume, and continues staring at his phone. For nearly a full minute, Fair is silent, and only starts speaking after we’re a good way through Sublime’s “Santeria.”
Assuming that Fair wasn’t just trying to share his love of ’90s stoner music with the citizens of Beverly Hills, this seems to be an intentional (if misguided) tactic to use social media companies' copyright protection policies to prevent himself from being filmed.
Instagram in particular has been increasingly strict on posting copyrighted material. Any video that contains music, even if it’s playing in the background, is potentially subject to removal by Instagram.
Most people complain about these rules. Beverly Hills law enforcement, however, seems to be a fan.
Based on what’s visible in the video, Fair seems to be banking on Instagram’s copyright algorithm detecting the music, and either ending the live stream outright or muting it.
Or, even if the algorithm does not detect the song immediately, someone — for example, a disgruntled police officer—could simply wait until a user posts an archive of the live video on their page, then file a complaint with Instagram that it contains copyrighted material.
Fair doesn't seem to be up-to-date on his social media copyright policies, however.
In May of last year, Instagram clarified its policies on including music in livestreams, and began to advise people to only use short clips of music, and to ensure that there is a "visual component" to videos—"recorded audio should not be the primary purpose of the video," the company said. Instagram declined to comment on this specific video, however, a spokesperson told VICE News that "our restrictions take the following into consideration: how much of the total video contains recorded music, the total number of songs in the video, and the length of individual song(s) included in the video." Under that rubric, Devermont's video should be fine, since it’s just one song, and is purely incidental.
Also, for anyone who is familiar with Sublime’s back catalogue, it seems unlikely that the band’s rights holders would do Fair a solid and complain to Instagram.
But then again, Instagram’s enforcement of their own policy seems to be unpredictable and inconsistent, and it’s hard to tell what the algorithm will catch during a livestream. There have also been plenty of high-profile of incidents of DJs and artists being penalized for playing their own songs (fans of the Verzuz series may remember Swizz Beats warning Beenie Man and Bounty Killer not to perform their own songs for more than 90 seconds).
And for prominent activist accounts like Devermont’s, the stakes are particularly high: too many violations can risk getting your entire account banned.
Under most circumstances, civilians are legally permitted to openly film on-duty police officers under the First Amendment. And while the interaction between Devermont and Fair is pretty benign, BHPD’s recent behavior suggests that at least some cops believe they can prevent themselves from being filmed or livestreamed by playing copyrighted music, which would have serious implications for more serious incidents of police misconduct.
That is: if this had only happened once, an officer coming up with an off-the-cuff, if slightly dodgy, plan to “hack” Instagram’s policy in order to skirt someone’s First Amendment rights would be eyebrow-raising for its ingenuity, if nothing else.
But the BHPD’s non-consensual Sublime listening party was not an isolated incident. There seems to be a pattern here.
In a separate part of the video, which Devermont says was filmed later that same afternoon, Devermont approaches Fair outside. The interaction plays out almost exactly like it did in the department — when Devermont starts asking questions, Fair turns on the music.
Devermont backs away, and asks him to stop playing music. Fair says “I can’t hear you” — again, despite holding a phone that is blasting tunes.
Later, Fair starts berating Devermont’s livestreaming account, saying “I read the comments [on your account], they talk about how fake you are.” He then holds out his phone, which is still on full blast, and walks toward Devermont, saying “Listen to the music”.
In a statement emailed to VICE News, Beverly Hills PD said that “the playing of music while accepting a complaint or answering questions is not a procedure that has been recommended by Beverly Hills Police command staff,” and that the videos of Fair were “currently under review.”
However, this is not the first time that a Beverly Hills police officer has done this, nor is Fair the only one.
In an archived clip from a livestream shared privately to VICE Media that Devermont has not publicly reposted but he says was taken weeks ago, another officer can be seen quickly swiping through his phone as Devermont approaches. By the time Devermont is close enough to speak to him, the officer’s phone is already blasting “In My Life” by the Beatles — a group whose rightsholders have notoriously sued Apple numerous times. If you want to get someone in trouble for copyright infringement, the Beatles are quite possibly your best bet.
As Devermont asks about the music, the officer points the phone at him, asking, “Do you like it?”
This would seem to suggest that playing copyrighted music as a deterrent to the First Amendment-guaranteed right to openly film police is, if not BHPD official protocol, at least a technique that has been deployed by more than one officer.
If Fair’s intent was to inhibit the ability to share video of inconvenient police interactions, it seems to have been unsuccessful thus far. Devermont has posted another, longer clip of the first interaction, music intact.
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