Just About Everything About Twitter Suspending Deadspin And SBNation Accounts Is Ridiculous

from the copyright-law-is-ridiculous dept

Tue, Oct 13th 2015 4:21am — Mike Masnick

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.

All in all, the whole thing is yet another example of the ridiculous things that come about because of our dopey copyright system.

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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

56 Comments

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Anonymous Coward, 13 Oct 2015 @ 4:50am

NBA v. Motorola
Compare to:

The National Basketball Association v. Motorola, Inc.
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cool, 13 Oct 2015 @ 4:55am

this makes almost 99.99% of the internet account avatars pirated
and the account owners money laundering terrorists/druglords...
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saulgoode (profile), 13 Oct 2015 @ 4:58am

The 512(i)(1)(A) policy is to suspend repeat infringers -- not repeat "targets of infringement allegations". Were there any court rulings that these postings were actually instances of copyright infringement?
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Anonymous Coward, 13 Oct 2015 @ 5:10am

No need to get on your soapbox and whine. It seems to me that they were taking the hearts of the works, i.e., the highlights, and not commenting on them. Doesn't seem like an open and shut case of fair use to me. You suggest there's no market substitution, but it seems to me that there is a very lucrative market for highlights like these. I personally pay money to watch these highlights online. If people are getting them for free elsewhere, it stands to reason that there would be market substitution. Not everything about copyright is "dopey," Mike. But your constant whining about it is pretty dopey.
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Anonymous Coward, 13 Oct 2015 @ 5:16am

Re: NBA v. Motorola
Compare to:

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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Anonymous Coward, 13 Oct 2015 @ 5:19am

Re: Re: NBA v. Motorola
I believe they are pointing out not everyone is familiar with what the letters "NBA" stand for.
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rikuo, 13 Oct 2015 @ 5:23am

Re:
Did you miss the part in the article where it pointed out that the GIFs in question are without audio? Or do you watch all of your paid for highlights without audio?
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ottermaton (profile), 13 Oct 2015 @ 5:25am

Re: Dopey comment
You suggest there's no market substitution, but it seems to me that there is a very lucrative market for highlights like these.

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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Anonymous Coward, 13 Oct 2015 @ 5:29am

Re: Re:
I did catch that part. And I agree that it means that less of the original was copied. I'm not sure it tips the scales very much, though. It's still the heart of the work. The reason they're posting the highlights, even without sounds, is precisely because they are so valuable.
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hij (profile), 13 Oct 2015 @ 5:31am

They may have a case
Sorry, but I am going to take a contrarian view here, and I know this may not be popular. The author of the article is incorrect when he says that people will look at these gifs in lieu of watching the game. I find the images quite engaging and more than satisfy my need to watch professional football. These highlights are more than enough, and I no longer feel the need to watch people take part in an activity that is physically harmful and are usually only able to play for one or two years before their health declines too low. It is a game that mostly enriches a small number of people, called "owners," who are supported by taxpayers who build extravagant palaces for them to make up for whatever shortcoming they have which needs to be compensated for.

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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Anonymous Coward, 13 Oct 2015 @ 5:36am

Re: Re: Dopey comment
They're the highlights precisely because people find them to be valuable. The NFL doesn't just sell games. It sells highlights. I know because I'm a customer. I'm literally sitting here at my desk watching highlights on nfl.directv.com from the games I missed yesterday. I paid a couple of hundred bucks for the privilege to watch games and highlights. You may think it's "dopey," but for me it's a great deal. Worth every penny.
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Anonymous Coward, 13 Oct 2015 @ 5:41am

Re: They may have a case
Thanks for the reasoned response. Don't worry about being unpopular here. Unless you're foaming at the mouth and yelling about how copyright is totally ridiculous, the TD minions will not be satisfied. Just know that cooler, more reasonable, people read this site too. They 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.
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Anonymous Coward, 13 Oct 2015 @ 6:00am

if there were, perhaps, a penalty, like there should be, for false takedown demands/requests, there would be a hell of a lot less of this sort of thing happening. also maybe a penalty for not knowing copyright law before doing the above as well would help?
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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Rich, 13 Oct 2015 @ 6:02am

Re: Re: They may have a case
Sure, because insulting people you disagree with means you are a "cooler, more reasonable person." You must have a different dictionary than I.
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That One Guy (profile), 13 Oct 2015 @ 6:02am

Well of course
I used to read books, but now I just glance at the short blurb on the back, or on the inside of the dust cover, and that's more than enough for me.

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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Anonymous Coward, 13 Oct 2015 @ 6:06am

Re: Re: They may have a case
Yeah, you seem really reasonable. What a joke.
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cpt kangarooski, 13 Oct 2015 @ 6:06am

Re: Re: They may have a case
Unless you're foaming at the mouth and yelling about how copyright is totally ridiculous, the TD minions will not be satisfied.

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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ottermaton (profile), 13 Oct 2015 @ 6:14am

Re: Re: Re: Dopey comment
I paid a couple of hundred bucks for the privilege to watch games and highlights.

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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BentFranklin (profile), 13 Oct 2015 @ 6:15am

"doesn't it seem totally screwed up that a major channel for major media properties can simply be disappeared?"

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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Anonymous Coward, 13 Oct 2015 @ 6:22am

This just contributes to the complete disrespect people have for Copyright.
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Whatever (profile), 13 Oct 2015 @ 6:26am

I guess I should just address the points in the article and explain why this isn't the sports league or tv network's fault, it's really the owners of the suspended accounts fault.

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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Anonymous Coward, 13 Oct 2015 @ 6:48am

Re:
I personally pay money to watch these highlights online.

You pay to watch highlights.
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Anonymous Coward, 13 Oct 2015 @ 6:57am

Re:
Because it's fair use no other explanation is needed.
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Anonymous Coward, 13 Oct 2015 @ 7:00am

Re:
So how is this any different than the nightly news showing sports highlights and reporting on the games?
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David, 13 Oct 2015 @ 7:09am

Maybe this is anti-American but...
Perhaps we should just stop watching the NFL. It's almost as literally a "Bread and Circuses" event as you can get, with the owners, league, and broadcasters making bundles of money from advertising, ticket prices, parking fees, merchandising, concessions, tax breaks, non-profit status, etc. All for the privilege of consuming 3 hours of your time to watch approximately 20 minutes of actual game play (the rest of the time is huddles, waiting out the play clock, half-time, time-outs, stopping of the play clock for various reasons, etc).
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Anonymous Coward, 13 Oct 2015 @ 7:10am

Re: Re: Re: Dopey comment
And? You think this experience is completely replicated by gifs without sound?

Maybe not everything about copyright is dopey (allegedly), but you certainly seem bent on defending the things that are.
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David, 13 Oct 2015 @ 7:11am

Re:
If I was at the event, and the clip was filmed/video'd by me, wouldn't I own the copyrights? Basically, the NFL is claiming copyright on everything you see or hear about the event.
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Mike Masnick (profile), 13 Oct 2015 @ 7:14am

Re: NBA v. Motorola
The National Basketball Association v. Motorola, Inc.

I think that's unrelated. That was about facts. Video imagery is a different issue.
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Anonymous Coward, 13 Oct 2015 @ 7:16am

Re:
Oh boy, not this again.

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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Mike Masnick (profile), 13 Oct 2015 @ 7:20am

Re:
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.

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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Anonymous Coward, 13 Oct 2015 @ 7:27am

Re: Maybe this is anti-American but...
Nothing anti-American about not wanting to watching millionaires play catch.
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Anonymous Coward, 13 Oct 2015 @ 7:28am

Twitter, just like Reddit (and others), don't give a shit about the internet anymore.
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Anonymous Coward, 13 Oct 2015 @ 7:28am

Re: Well of course
"I used to watch movies, but these days I find that trailers show everything I might be interested in anyway"

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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Anonymous Coward, 13 Oct 2015 @ 7:33am

Re: Re: They may have a case
I didn't feel the need to report hij's comment. That was a reasoned response. Something you are incapable of doing.
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Mason Wheeler (profile), 13 Oct 2015 @ 7:41am

So in this corner, we have an abusive organization that promotes violence and calls it entertainment, the cornerstone of a truly ugly system that makes a regular practice of covering up violent crimes by its athletes and extorting astronomical amounts of money from cities all across the country.

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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cpt kangarooski, 13 Oct 2015 @ 8:00am

Re: Re:
Yes, you'd have the rights to your recording. But I don't think that's what's going on here.
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cpt kangarooski, 13 Oct 2015 @ 8:08am

Re: Re:
Well, don't give that clause in section 107 too much value. It's just some suggestions and there can certainly be news reporting that isn't fair use. Harper & Row v. Nation Enterprises is probably the leading case on that.
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Anonymous Coward, 13 Oct 2015 @ 8:18am

Re: Re: They may have a case
You insult people you get flagged, it's not hard to figure out.
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Brendan Burke (profile), 13 Oct 2015 @ 8:27am

The NFL's "express written consent" commercial is at the first commercial break of the third quarter, not at the end of the game.
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Whatever (profile), 13 Oct 2015 @ 9:01am

Re: Re:
I think that (as noted) there are cases for and against this. Clearly, if the sites had their own people at the event with a camera capturing it as news, there would be no issue. They could also report the score, who scored, etc (facts not covered by copyright). It would be much harder to show fair use in using the copyright broadcast video for purposes of promoting or driving traffic to a website.

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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John85851 (profile), 13 Oct 2015 @ 9:12am

Re: Maybe this is anti-American but...
So where's the "bread" part of it? :)
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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John85851 (profile), 13 Oct 2015 @ 9:14am

Re: They may have a case
No offense, but if you're satisfied with a clip reel or highlights, then you're probably not their target market. And if you're not their target market, why in the world are they doing what they're doing? Does the NFL think taking highlights down from Twitter will convince people like you to purchase an NFL/ DirectTV package?

This is kind of like the MPAA going after file-sharing sites to convince people to buy DVD's.
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Anonymous Coward, 13 Oct 2015 @ 9:20am

Lots of good reasoned discussion here.

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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Mike Masnick (profile), 13 Oct 2015 @ 9:47am

Re: Re: Re:
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... 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.

Doesn't that increase the argument that it's transformative?
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Whatever (profile), 13 Oct 2015 @ 9:57am

Re: Re: Re: Re:
Transformative? No, it increases the argument that they are knowingly using someone else's video and trying to cover it up.

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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Anonymous Coward, 13 Oct 2015 @ 9:58am

Repeat infringer
Yes, the DMCA in 512(i)(1)(A) requires service providers to implement a "repeat infringer policy,"
I think it's not exactly true, it's just a requirement if they want DMCA safe harbor. But there may be other legal principles that could protect them. Countries without explicit safe harbor laws seem to manage.
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Ninja (profile), 13 Oct 2015 @ 10:07am

Re: Well of course
Well, SOME of these things actually help you saving time from consuming crappy content so maybe that's what they were afraid of?

Other than that have my funny vote.
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Anonymous Coward, 13 Oct 2015 @ 10:33am

Re: Re: Re: Re:

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... 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.

Doesn't that increase the argument that it's transformative?

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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cpt kangarooski, 13 Oct 2015 @ 11:12am

Re: Re: Re: Re:
No, I wouldn't think so.

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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Docrailgun, 13 Oct 2015 @ 11:28am

... the less Deadspin in the world the better. How their writers got a gig I have never understood.
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Anonymous Coward, 13 Oct 2015 @ 12:25pm

Re: Re: Re:
No, it's because GIF has no sound.
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silverscarcat (profile), 13 Oct 2015 @ 1:05pm

Considering that SBNation and Deadspin...
Are owned by Vox Media and Gawker...

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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silverscarcat (profile), 13 Oct 2015 @ 2:58pm

Re: Maybe this is anti-American but...
Actually, the games are around 45 minutes of playtime, not 20. Anyone who says otherwise is fooling themselves.
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silverscarcat (profile), 13 Oct 2015 @ 2:59pm

Re:
They're mostly Trust Fund Babies.
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JMT (profile), 13 Oct 2015 @ 6:11pm

Re:
"...it seems to me that there is a very lucrative market for highlights like these."

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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JMT (profile), 13 Oct 2015 @ 6:15pm

Re: Re: Maybe this is anti-American but...
"So where's the "bread" part of it?"

Cheerleaders...
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