Stupid Copyright: MLB Shuts Down Twitter Account Of Guy Who Shared Cool MLB Gifs

from the you're-not-helping dept

Another day, another story of copyright gone stupid. This time it involves Major League Baseball, which is no stranger to stupid copyright arguments. Going back fifteen years, we wrote about Major League Baseball claiming that other websites couldn't even describe professional baseball games. There was a legal fight over this and MLB lost. A decade ago, MLB was shutting down fan pages for doing crazy things like "using a logo" of their favorite sports team. And, of course, like all major professional sports leagues, MLB has long engaged in copyfraud by claiming that "any account of this game, without the express written consent of Major League Baseball is prohibited", which is just false. MLB has also made up ridiculous rules about how much reporters can post online at times, restricting things that they have no right to actually restrict.

The latest seems particularly stupid. Following on some sort of silly spat in which a guy named Kevin Clancy at Barstool Sports (the same brainiacs who wanted to sue the NFL for having sorta, not really, similar merchandise) got pissed off at a popular Twitter account called @PitchingNinja run by a guy named Rob Friedman, who would tweet out GIFs and videos of interesting pitches from MLB games. Apparently, the dudebro Clancy from Barstool sports pointed out that Friedman was violating the made up rules that MLB has on how much someone is allowed to share on social media, leading a ton of Clancy's fans to "report" Friedman. Twitter shut down Friedman's account -- leading said dudebro, Clancy, to celebrate.

In a podcast interview with that very same Barstool Sports, who got his account shut down, Frideman notes that "there's such a thing as fair use." Indeed, his use of images and videos appears to be fairly obviously fair use. Since we can't see his account while it's suspended, we'll go off of the Yahoo Sports description of the @PitchingNinja account:

Nearly every Rob Friedman tweet arrives offering four things: a baseball player’s name, a pitch he has thrown, an adjective to describe that pitch and a short video clip to illustrate it. Changeups are “ridiculous,” and fastballs are “absurd,” and sliders are “nasty,” and sometimes they’re “disgusting” and “filthy” and “obscene” and every other sort of visceral descriptor, too. Friedman is best known as @PitchingNinja, and his nearly 50,000 followers relish his ability to curate baseball’s deep cuts – the sort of physics-bending pitches average fans may not notice but ones in which pitching nerds luxuriate.

So, going through a quick four factor test -- Friedman is adding commentary, using a tiny amount of a game, not doing this for any commercial advantage and, if anything increasing the market for MLB's product. It seems like a pretty clear cut fair use situation. MLB has told Yahoo that they expect to come to some sort of agreement to let Friedman back on Twitter:

League sources told Yahoo Sports that they expect to “quickly and easily” reach a resolution with Friedman that would allow him to continue posting pitching GIFs. In a letter to the league official who filed the DMCA complaint, Friedman, a lawyer by trade, outlined his argument on how what he does benefits the league.

But, of course, it's bullshit that they should even need to do this in the first place. The whole point of fair use is that you don't need permission, and you don't need to reach an agreement. And yet, according to Yahoo, MLB seems to think it needs to come to an agreement with Friedman over what is fair use:

MLB plans to contact Friedman in the coming days, if not sooner, at which point they are likely to agree on what constitutes fair use.

But, they don't need to agree. The law says what fair use is, and MLB doesn't get to change that to suit their own whims.

Friedman also told Yahoo the following:

“I also understand that MLB has every right to protect its product,” he wrote in the email, which he shared with Yahoo Sports. “I’m most certainly not trying to deprive MLB of any value, instead I’m trying to create value by helping pitchers have a sense of community, learn, and appreciate the game. Rather than debate the legal matter, I am more than happy to give MLB all of my gifs for free or work out some other content deal that just allows me to use MLB content, as permitted, for fair use, to help pitchers, coaches, and fans understand the game. I would be happy to donate any content for free and execute a copyright license ensuring that MLB owns any gifs I create.”

That's... weird. MLB already owns the copyright to the videos. Fair use is what lets Friedman make use of them without needing a license. So I'm not sure what he's talking about licensing them back to MLB. That doesn't really make much sense. But, you still see the underlying point that he's making, which is that he's building more interest in the game, and he's not trying to claim any ownership or make any money from what he's doing, it's just for the love of sharing the game and educating people. Which, you know, is the kind of thing that fair use is explicitly designed to enable.

And, of course, no one should take Twitter off the hook here for suspending Friedman's account. Twitter could have (and should have) rejected the DMCA notices and pointed out that the @PitchingNinja account was engaging in fair use. Instead, it shut down the account, and once again showed how copyright is regularly abused for censorship, rather than any legitimate purpose under the Copyright Act.

Filed Under: baseball, censorship, copyright, fair use, gifs, kevin clancy, pitchingninja, rob friedman
Companies: barstool sports, mlb, twitter

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:

1. 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.
2. 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.
3. 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."
4. 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.
5. 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.
6. 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.

Filed Under: copyright, dmca, fair use, football gifs, gifs, repeat infringer policy, takedowns
Companies: deadspin, gawker, nfl, sbnation, twitter, vox, xos digital

Tumblr Complies With DMCA Takedown Requests From A Self-Proclaimed Future-Alien From Another Planet

from the he-has-the-GIF dept

We see more than our fair share of bogus DMCA and intellectual property takedowns around these parts. Hell, there are so many that at one point a website was created strictly to keep a running tally of these things, though that site appear to no longer exist. That said, there are bogus takedowns, and then there are bogus takedowns, and this is the story of one example of the latter and the silliness of the take down first and ask questions later attitude sites take these days.

Tumblr is rife with GIFs. We all know this. Tumblr claims that those that have takedowns filed against them will have their material removed first, but will be provided all the relevant information on the takedown so that they can figure out what happened. Tumblr also claims that real-life human beings review each of these requests to ensure they're legitimate. If that's true, then Tumblr needs to explain why a bunch of GIF artists are having their material removed at the behest of the purported true copyright owner, a future-alien being channeled by a present homosapien named Darryl Anka.

Darryl Anka telepathically channels a space alien from the future named Bashar who lives on the planet Essassani; on this basis, he has claimed many copyright infringements in the creations of Tumblr's GIF artists. The "trained members" of Tumblr's Trust and Safety team who "reviewed" these claims decided they were sufficient grounds for action, and promptly removed the offending GIFs, sending emails to the artists who'd posted them explaining what had happened. Each artist received a "strike" against them under Tumblr's three-strikes-and-you're-terminated policy.

Look, I'm the last person who wants to go around offending the sensibilities of the great nation-planet of Essassani. After all, we may need their military assistance to fight against The Reapers years in the future once we've attained intergalactic travel and all that. But still...what the shit? This is almost enough to make me wonder if this whole episode was specifically designed to throw shade on Tumblr and its likely false claims about how and who is reviewing these takedown notices. Some of the GIF artists in question are equally flabbergasted.

The claim is that my work is in fact copyrighted by “Bashar channeled by Darryl Anka” What? I looked it up. Darryl Anka believes that he is channeling information from a space alien from the future named Bashar that lives on a planet called Essassani via telepathy. Cool story bro. What exactly is the legal basis for their claim? Maybe it has something to do with “ ” ? Is that some kind of alien code? Or did Tumblr just auto copy and paste the email they got including stray HTML garbage characters? What is the evidence? “The copyrighted works can be found at www.basharstore.com/.” I clicked that link. There’s no GIFs on it. There’s nothing that resembles anything on my blog. Again, Tumblr’s policy states “Each claim is reviewed by a trained member of our Trust and Safety team.” I find it difficult to impossible to believe that actually happened.

Here’s my conclusion: Tumblr’s DMCA takedown system is fully automated and “trained members” do not in fact review anything. Or, embarrassingly someone did look at all of that “evidence” and decided that aliens from other planets have legal rights on Earth and that even though a copy of the alleged infringing work is not on the site provided, they’ll just take Darryl’s word for it?

Several things went wrong here. First, this is what you get in a "takedown first" scenario: nonsense claims that are given the benefit of the doubt to the detriment of legitimate speech/art/whatever. Add to that the embarrassment of Tumblr's review process claim being completely debunked and you can imagine how pissed off these artists are. And, finally, we have what is either an impressively creative troll or someone with a mind that broke somewhere around the fourth season of The X-Files a decade ago. And, coming full circle, keep in mind that that's the person getting the benefit of the doubt in the DMCA process.

It's time we did this differently, valuing the speech of the many over the restrictions wished for by the few. Even if amongst those few is Bashar, the alien from the future.

Filed Under: aliens, bashar, censorship, darryl anka, dmca, essassani, gifs, takedowns
Companies: tumblr, yahoo