NFL's Dumbest Replay Ruling Happened on Twitter
On Monday evening, Twitter suspended the accounts of two prominent sports blogs, Gawker Media's Deadspin and Vox Media's SBNation. The accounts -- Deadspin's main account, @Deadspin, and SB Nation's GIF feed, @SBNationGIF -- were reportedly suspended after complaints from the National Football League, the Big 12, the Southeastern Conference and Ultimate Fighting Championship. Those organizations filed 18 grievances to Twitter citing the sites' regular posting of GIFs and Vines of game highlights, saying this violated of the Digital Millennium Copyright Act.
Legally, they may have a point. But are these groups -- in particular the NFL, which we can safely assume was Twitter's biggest concern here --simply shooting themselves in the foot by targeting popular sports sites that essentially provide them with free advertising?
On the one hand, the NFL et al. are notoriously heavy-handed when it comes to cracking down on copyright infringements -- and for good reason. The lucrative contracts these leagues sign with broadcasters for exclusive media rights are the major driver of their ever-growing revenue.
But on a practical level, is the NFL really facing any stiff competition from people tweeting a three-second GIF of Eli Manning's game-winning throw or Philip Rivers inadvertently punching
a bird his glove? Let's keep in mind that the league hasn't really figured out this whole "social video" thing yet. The NFL is far behind others, especially Major League Baseball, in its mobile and social offerings, and whatever success it has in engaging fans through those mediums is a function of its existing popularity. As Matt Yoder of the blog Awful Announcing notes, this is the same NFL that just now, in 2015, discovered YouTube, and inexplicably disabled the ability for people to share clips on Web sites through embedding.
There's a certain hubris underlying these crackdowns: We don't want your sites to share our game with your million Twitter followers. We're the NFL. But if you're trying to reach millennial fans, highlights on the league's clunky native video player over at NFL.com can't be the only option. Yes, your sport is wildly, disgustingly popular, but you are still limiting your exposure by restricting these sites from sharing your content.
But there's also something more at work here. The NFL, it seems, doesn't want its clips used on any site over which it doesn't have complete control. It's not a coincidence that Deadspin and SB Nation aren't just two of the most popular sports sites on the Internet -- they are also a forum for some of the most critical voices in what is often a fawning football press that offers little more insight than league-sanctioned PR. Highlights and bloopers aren't just whimsical fodder for easy clicks -- they're also used to provide context and support for astute commentary. I doubt an NFL-owned site with all the proper copyrights would post GIFs of brutal hits to the head to reinforce just how violent and dangerous the sport is, or blow up a Vine to examine potential referee impropriety. Limiting the use of these clips threatens the ability of journalists to do their jobs properly.
Legally, the situation is a bit more complicated. The use of GIFs and Vines on the sites themselves seems to be protected under fair use, which protects the use of copyrighted material for commentary and criticism. But social media often plays by its own set of rules, raising calls for copyright law to catch up to technology. The accounts were suspended by Twitter, which may consider takedown requests but isn't required to comply; Twitter makes its own allowances for fair use under its own copyright policy.
The NFL has stated outright that it didn't ask for the accounts to be suspended, and a CNBC review of the complaints confirms this. This means Twitter took it upon itself to take down the accounts, probably to cover its legal bases while also, perhaps not coincidentally, appeasing a major business partner. The NFL and Twitter are teamed up through the Twitter Amplify program, which allows businesses and media companies to share video, since 2013.
Under Title 17, Section 107 of the U.S. code, there are four criteria for determining fair use:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
For-profit journalism blurs the line between using copyrighted material for commentary or commercial gain, but as previously demonstrated, these sports GIFs are certainly used for critical purposes. And the instantaneous nature of GIFs and Vines themselves belie any notion of these clips representing a substantial portion of the broadcasts.
It seems to all come down to who's willing to stand up to the NFL. Right now, that's pretty much only a handful of journalists and a few media companies. Twitter seems to have caved fairly easily; let's see if a site like Tumblr, which is wholly built on such GIFs, falls in line, too. As of Tuesday, the @SBNationGIF account was still suspended, while @Deadspin came back online within about an hour Monday evening. And from the looks of Deadspin's first tweet thereafter, the Shield didn't do much to scare the folks there.
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