Just About Everything About Twitter Suspending Deadspin And SBNation Accounts Is Ridiculous
from the copyright-law-is-ridiculous dept
Yesterday on Twitter, there was a big discussion over the fact that Twitter had disabled two well-known sports media Twitter feeds, both for supposedly infringing on copyrights by posting GIFs of sports highlights. Almost everything about this story is ridiculous and highlights just how screwed up copyright law is today. Let's count the ways:- The idea that these GIFs were infringing seems ridiculous. There's a very, very, very strong fair use argument here. They were showing tiny (sound-free) tidbits from college and professional football games. No one is using these in place of watching the actual games. In fact, these GIFs almost certainly act as strong advertising for getting people to actually watch games.
- The idea that Twitter suspended these accounts is somewhat understandable, but still ridiculous. Yes, the DMCA in 512(i)(1)(A) requires service providers to implement a "repeat infringer policy," and that policy must "provide for the termination" of said repeat infringers. So, for this bit of ridiculous, we can blame the DMCA that sort of forces this on Twitter.
- Even so, we can still blame Twitter somewhat for not standing up to the NFL and XOS Digital (which has the broadcast rights for a bunch of college football games) and saying "this is fair use."
- Even given the requirement to terminate repeat infringers, doesn't it seem totally screwed up that a major channel for major media properties can simply be disappeared? This is, again, an example of why the Section 230 safe harbors are so much better than the DMCAs. Deadspin and SBNation weren't "pirate sites." They were doing something that tons of professional media have done for ages -- and suddenly they lost their accounts? That's ridiculous.
- What the hell are the NFL and XOS Digital thinking? The NFL has claimed that it never asked for the accounts to be shut down -- it just wanted the tweets with the GIFs to be taken down. But, of course, that makes no sense. Under the DMCA, again, if the tweets are infringing, at some point it will hit the "repeat infringer policy" so the NFL's statement is meaningless, and suggests a lack of knowledge of copyright law. Given that this is the same sports league that flat out lies at the end of every game with its copyright message that claims you can't even repeat "accounts of the game" without "express written permission," perhaps it's not a surprise that it wouldn't understand this part of copyright law either.
- What the hell are the NFL and XOS Digital thinking, part II. Who the hell is this helping? I'm assuming that both will make vague references to protecting their copyrights and about how valuable broadcast deals are. But, again, no one who put more than 3 seconds into thinking about this thinks that people are suddenly going to give up on their expensive cable package because they can watch GIFs on Twitter. That's not how this works. And really, if their broadcast deals are so fragile as to be undermined by GIFs on Twitter, perhaps there's a bigger problem there to address.
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Filed Under: copyright, dmca, fair use, football gifs, gifs, repeat infringer policy, takedowns
Companies: deadspin, gawker, nfl, sbnation, twitter, vox, xos digital
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NBA v. Motorola
The National Basketball Association v. Motorola, Inc.
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Re: NBA v. Motorola
The National Basketball Association v. Motorola, Inc.
I'm familiar with that case, but I'm not sure what you're suggesting the comparison is. Can you elaborate?
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I think that's unrelated. That was about facts. Video imagery is a different issue.
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and the account owners money laundering terrorists/druglords...
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Re: Dopey comment
Maybe, but that there is a market for the highlights of games doesn't it any way make it substitute for the actual games that the NFL and XOS are pretending to protect. You're comparing apples and oranges.
What about game analysis, something that would absolutely, positively fall under Fair Use? Just because some would pay for such analysis, does that mean that is also a case of market substitution? Maybe in your dopey permission culture world it does, but back here in reality it doesn't.
I personally pay money to watch these highlights online.
You pay for highlights like this yet you have the nerve to call other people "dopey"?!?!?
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Just because you pay to be able to watch the games and they also include highlights in the bundle does not mean that you get to stomp all over everyone else's Fair Use rights.
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Maybe not everything about copyright is dopey (allegedly), but you certainly seem bent on defending the things that are.
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You pay to watch highlights.
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There is NO market for these GIF highlights. None. Nobody is going to pay money for a short, low-res, soundless, looping clips. Stop making ridiculous claims without even a shred of info to support them.
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They may have a case
So yeah, a few gifs may indeed be enough to detract from the league's power to extract money from taxpayers and fans.
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Re: Re: They may have a case
Oh, that's not true in the least.
Just know that cooler, more reasonable, people read this site too.
Another falsehood: you're conflating a cool, measured attitude with being more tolerant of in favor of copyright. But there are plenty of people who advocate for less or no copyright calmly and rationally, and plenty of dipshits who shrilly proclaim that copyright is a human right or some nonsense and that anything less than absolute protection forever is theft.
hey just get drowned out by Mike's die-hard pirate army who jump at the chance to abuse the "report" button whenever they disagree with someone
Not in my experience. Instead, we just almost never see anyone like that here. So boy is it surprising that in a story with only a handful of replies, that we would apparently get two as appears to have happened here at first glance. What are the odds?
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This is kind of like the MPAA going after file-sharing sites to convince people to buy DVD's.
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the problem is, as has been for so long, members of Congress doing 'favors for friends' instead of bringing in sensible laws that cover all scenarios as well as all people and businesses. i dont believe that every politician is in the position of receiving 'campaign contributions' from the entertainment industries, so why has no one ever tried to get something more sensible in place instead of this total screw up?
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Well of course
I used to watch movies, but these days I find that trailers show everything I might be interested in anyway, so there's no longer any need to actually watch the full movie.
I used to listen to music, but these days it just takes too long, so now I just listen to a randomly chosen 5-second clip before moving on to the next song, and the next randomly chosen clip.
Given the above, of course short, soundless gifs are going to compete with the shows as a whole, because why would anyone bother watching an entire game if they can watch short clips from it, devoid of any sound?
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Re: Well of course
For some movies that is all that's needed. i.e.
The good guys *shows all the good guys* fighting against the evil guy *show evil guy doing evil stuff*. They fight for freedom|love|survival|the planet *some action scenes* *good guy makes a joke scene* In SUMMER 2016!
"I used to listen to music, but these days it just takes too long, so now I just listen to a randomly chosen 5-second clip before moving on to the next song, and the next randomly chosen clip."
Oh, you're a fan of Skrillex?
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Re: Well of course
Other than that have my funny vote.
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I don't like this argument much because it implies that major media properties should receive different treatment from the rest of us, which is exactly what we argue against much of the time.
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1 - There is little fair use argument in posting on twitter as commercial promotion of your commercial website. The intent isn't just to share (it's not a private tweet) but to encourage retweets and "going viral". They are extracting commercial value from it, so fair use here is really quite a long shot argument. It's not educational, it's not to review the broadcasting techniques - it's to extract commercial benefit.
2 - The ultimate responsibility for this falls to the account holders who, having been DMCA'ed in the past have continued to do the same things. It's not Twitters fault, they are following the law. I am not 100%, but I think the number for a suspension of an account is pretty high.
3 - It's not up to twitter to determine usage rights. They are a "service provider" and not a content provider. Their making any claims at this point would directly make them a co-defendant, rather than having a safe harbor. It's not going to happen, no service provider with a decent legal team would ever want to pop that bubble.
4 - Yes, when it comes to abusing copyright, being in a position to claim "some user submitted it" rather than taking responsibility for your site is an advantage.
5 - No thinking required. They report illegal use, and twitter takes action. They don't control twitter or their policies.
6 - If I can get a GIF highlight of every major play, every score, every important moment of the games, then why bother paying for it? If they can post up 10 seconds, why not 20 seconds, 30 seconds, a few minutes? Remember, it's all for commercial benefit, and that's the major issue. It also can take away from the value of their own highlight shows, of their own websites, and so on. It's bottom line thinking for companies who have paid a high price for the rights and need to extract all of the income out of it, and not let sites like SBNation build a fanbase for free.
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We already went through this the last time you defended news organizations whining about Google - again, short clips and portions do not replace the entirety of the original. Blurbs and summaries do not replace books. Snippets do not replace newspapers. Highlights do not replace entire events. (Of course, you subsequently proceeded to claim that anyone who disagreed with your perspective that reading a snippet was sufficient to replace the whole article obviously reads newspapers back to back, including the ads.)
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Your fair use analysis is way off. 1. Commercial benefit does not remove fair use. It may decrease the likelihood, but plenty of fair use is for commercial benefit *especially* 2. when it comes to media. You said it's not "educational" but the statute notes: "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research" Note that news reporting is there (before educational uses).
Note: most news reporting fair use is absolutely "for commercial benefit."
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Moreover, it's even harder to claim fair use when sbnation appears to intentionally crop out all of the on screen graphics AND adds their own watermark to the video (see http://www.sbnation.com/2015/10/12/9517163/steelers-chargers-monday-night-football-leveon-bell-micha el-vick-game-winning-touchdown for an example video). The process looks pretty intentional to edit the video to their benefit. It would be a pretty difficult argument to claim fair use under the circumstance.
Moreover, let's be clear here: If they had claimed fair use it's likely twitter would leave the stuff up and let them litigate. Twitters action generally suggest that the sites have either not been answering DMCA notices promptly and appropriately, or they just know they aren't going to win and were hoping to benefit for as long as they could before each take down. I can't imagine them feeling that they have a fair use claim and then not having a pre-made DMCA response sitting waiting to be sent back.
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Doesn't that increase the argument that it's transformative?
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Not that further down the page that I linked, they have an actual "news" style review of some NFL games, and show the full screen video including the CBS logo and all other on screen stuff. That is reporting, and they have a much better fair use claim there. But the short gif videos with their own logo on it are, well... promotional videos for their website mostly. Not much reporting (they don't add anything except a logo, and lose the sound), just seeming to be trying to get viral distribution and promotion.
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Are you suggesting here that simply cropping an image to remove the author/attribution should be considered transformative?
Should photoshopping my name onto the cover of someone else's book be considered transformative too?
That's exactly the kind of juvenile approach to copyright that your critics accuse this site of promoting.
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Transformativeness would involve using the used material in a different way, or as raw material for something new. If the clip were used to illustrate how a sportsball player should stand, or run or something, in the context of sports training, then it might be transformative, as an example. Even Google Image Search was transformative because it was visual search engine results and not just meant to be the same purpose to which the works were originally intended.
The only way I can see mere cropping being transformative would be if it were cropped so much that it was no longer even recognizable as sportsball, but was just a few pixels or something for a piece of video art.
Ultimately, two things to remember about fair use. First, context is key. Second, the four factor analysis is not what's important. That's just a tool to help find fair use. What matters is the fundamental question: is the work fair? It's possible to entirely lose on the four factors and still be fair, or to entirely win on them and not be fair. So don't get too hung up in trying to use to the test as it were, but try to stand back and look at it holistically.
(And at least it's not as bad as seperability in the utility doctrine, which is really just a weak excuse for whatever the judge felt like doing)
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Maybe this is anti-American but...
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Re: Maybe this is anti-American but...
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But, yes, I would agree that this counts as a way of distracting the population for a few hours every week or every night.
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Cheerleaders...
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And in this corner, we have media complicit in the entire system, working to promote it.
There's really no one to root for here.
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Is it just me or am I the only person who doesn't care about the NFL? I get the appeal, but the commercialization of the whole thing is repugnant to me. College football used to be different but it's going the same route these days.
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Repeat infringer
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Considering that SBNation and Deadspin...
I'd say it's Karmic Justice of some sort.
Granted, it still blows and this isn't right, but I laugh at them for this.
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