What Do You Say When The NFL Sends A Takedown Notice Over A GIF You Posted?
No, not like this young lad and his fiery lady to his left... *Scroll down past the GIF if you are not a fan of language that automatically makes a movie PG-13*
What an appropriate time to discuss the Digital Millennium Copyright Act (DMCA) after a heart-wrenching end to the Michigan Football game that naturally resulted in a series of classic graphics interchange format (GIF) images. Many people also noticed that Twitter suspended two accounts, @SBNationGIF and @deadspin (currently back up and tweeting), last week after the NFL sent the social media site several takedown notices concerning copyright-protected footage on posts.
We, as sports enthusiasts, tend to overlook the liabilities involved when we visit sites like these, write on MGoBlog or another news blog, or sharing a video on Facebook or Twitter that does not come from the source who owns the rights. Sometimes we turn images into humorous memes or graphics, but sometimes we post them on multiple online service providers as they were originally broadcast. Heck, you may be wondering why you should bother being concerned about copyright law. Well, our repetitive footage-centric sports culture is vastly expanded by social media in the digital age, and social media is something we all take part of whether or not we like it. The digital age, though, brings with it murky uncertainty in the law, and that murky uncertainty can be as terrifying as Erebus when groups like the NFL decide to go on the hunt. Therefore, the question remains: What makes a use a "fair use" to qualify for the defense, rather than remain as unlicensed appropriation?
Here are a few preliminary things you need to know to understand the DMCA and where it fits in this conversation:
- The DMCA limits internet service providers' (e.g., YouTube, Twitter, Facebook) liability related to infringing materials online. See 17 U.S.C. section 512
- The two "safe harbor" provisions, which I will explain below, apply and offer protection to the internet service provider, NOT to the average user who posts infringing content.
- This act is the reason why you can flag or report content that users post on the majority of internet service providers.
- In essence, there is not a balance between the protections of the original creator and of the fair user because content is treated as "it's OK until it's not OK," and this is good for the party claiming fair use.
Ever since the DMCA was passed in 1998, internet service providers who give society substantial non-infringing uses will not be liable, contributorily or vicariously, for any damages if they abide by section 512. The act's primary directive was to "maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information." With the increasing usage of social media internet service providers, users are posting and sharing sports content such as broadcast clips for assorted purposes ranging from "access to information" to humor, which all can strike social interest, knowledge, and conversation.
So, has the DMCA struck the desired balance? Not really. According to section 512, an internet service provider is immune from liability - resting in the "safe harbor" - where it does the following, generally:
- Satisfies the definition of "service provider" [section 512(k)(1)];
- Meets two "safe harbor" eligibility requirements: (1) Reasonable termination policy implemented, & (2) No interference with standard tech measures [section 512(i)(1)];
- Is transmitting, caching, storing, etc. content [section 512(c)(1)]; AND
- Meets two requirements for the "safe harbor": (1) Designates an Agent to whom copyright notices are to be sent [section 512(c)(2)]; & (2) Either (a) has no actual knowledge of the infringement (i.e., subjective knowledge), (b) is not aware of facts that make infringement apparent (i.e., objective knowledge), or (c) acts "expeditiously" to take down the content once aware
The DMCA immunizes these service providers like Youtube, Twitter, and Facebook and passes the burden to both the copyright holder and the posting user. Where providers meet section 512's requirements, copyright holders have the burden of (1) monitoring internet service providers for infringing content, and (2) substantially complying with a long list of requirements when notifying a service provider to give them knowledge of the infringement [see section 512(c)(3)(A-B)]. Similarly, the posting users have the burden of reading through long terms and conditions and of taking responsibility for what they post. Being misinformed or uneducated is not a defense if a copyright holder enforces his rights against individual citizens, and it does happen.
EXAMPLE OF TAKE DOWN & PUT UP PROCEDURES, STEP BY STEP:
- Deadspin posts a GIF with an NFL broadcast clip protected by copyright law on its Twitter account, @deadspin.
- People at the NFL search the World Wide Web and - SHOCKER - finds the GIF copy of the broadcast that @deadspin posted.
- The NFL's lawyer sends Twitter's designated Agent a letter that complies with the long list of requirements to constitute awareness on behalf of Twitter.
- Twitter takes down the content.
- Twitter tells Deadspin that it took down the content.
- Deadspin has the option of filing a counter-notice to Twitter if it feels like the content it posted was taken down wrongfully.
- If the counter-notice is valid, Twitter notifies the NFL, who then can file a lawsuit within a certain number of days.
- If the NFL does not file a lawsuit, Twitter can put the content back up, and free speech reigns!
*In reality, @deadspin was suspended for one hour because it occasionally/frequently posts GIFs of highlights, bloopers, etc. on its Twitter account. According to its podcast, Deadspin told them to *pardon my language* "Eat shit," and the oppression lasted only one hour. Click here to listen to the Deadspin podcast "Suspended!" to hear its side of the story. Click here for Deadspin's parody response to initiate conversation once its suspension was lifted.*
This is how we get the "it's OK until it's not OK" mentality - whether you view that as a good or bad thing is up to you - because although that is not the law, it is how the system is operating.
Fair Use, aka the "F. U. Defense"
The first thing y'all need to know about the fair use defense is that not much is clear. Judges analyze the claims on a case-by-case basis and have a few basic guidelines they incorporate. Trust me, our copyright class at Tulane had to see if we could "code" fair use for the Harvard Law Library, and, in a nutshell, we determined that there was not enough law across the circuit courts to predict a clear result.
What we could determine, though, is that claiming fair use under current law is a true defense. In other words, claiming fair use is not a right as the law is written now, even if many people progressively believe it should be viewed in that light. At first glance, the distinction between "defense" and "right" may not stand out, but it is critical to appreciating how the law can work in your favor or, alternatively, if you do not think it does, how you can change it.
- If the law views fair use as a "defense," the defendant is conceding that the work is copyrighted and, thus, has a tougher burden to face in proving his use is legal.
- If the law views fair use as a "right," on the other hand, the plaintiff alleging infringement would have to show that his right trumps the defendant's right and, thus, is starting on a more level playing field.
These are the four fair use factors courts look at for a use to not violate copyright law and the important highlights of each factor:
- PURPOSE & CHARACTER OF THE USE:
- A parody is more likely to be found a fair use than a satirical work because it is more directly related to what the commentary is intended to be about (e.g., Deadspin's GIFs are sports GIFs parodying the sports topic it wants to commentate on).
- There is a difference between news gathering and news reporting in that reporting facts is fair use and meant to inform whereas news gathering can be viewed in a way collecting others' works to use as your own.
- Commercial nature does not automatically go against a finding of fair use, for it can be outweighed by a use like education or parody.
- Good faith is weighed in this factor as well.
- The key question for this prong is whether the use is transformative - a change in medium, improving access to the information, a physical transformation, changing the protected content's purpose, etc.
- NATURE OF THE COPYRIGHTED WORK:
- Is it fact or fiction? Facts are not protected under copyright, but a news report may fall withing the scope of copyright protection because of its expression of those facts.
- Again, the commercial nature could be argued here, but it should not be determinative.
- AMOUNT & SUBSTANTIALITY OF THE PORTION USED:
- There is a quantitative evaluation here. It could be de minimis, where so little is taken it is not enough to qualify as infringing. Alternatively, where the content takes closer to the entire amount of the original copyrighted work, a finding of infringement is more likely. Also, time-shifting is considered fair use (e.g., the personal use of TiVo or DVR-ing a sporting event to watch at a later time when you had the license to watch it live via your cable or satellite provider).
- There is also a qualitative evaluation here. Where the content takes "the heart of the work" (for example, noting the extent of public recognition of the original in the copied content), it generally will be seen as infringement. Where the alleged infringing work is a parody, however, taking some part of the heart of the work into the parody is essential to conjure up commentary, and the fair use analysis gets complicated. In general, courts should not be making judgments over whether artistic expression is substantial, but they may look into the level of transformativeness.
- EFFECT ON THE POTENTIAL MARKET OR VALUE OF THE COPYRIGHTED WORK:
- Courts look at whether it is a direct replacement in the market for the copyrighted work as well as whether it is a replacement in any potential market the copyrighted work could be in. If so, you guessed it - it is more likely to not be a fair use. If the work is a parody, this factor is not given much weight because the parody likely would never be a market competitor with the copyright-protected work (e.g., Deadspin's GIFs would not compete in the same market or potential markets with ESPN's original broadcasts).
Click here to watch a quick video clip that could have a strong argument for fair use because (1) its transformative parody nature adds elements from "The Office" to add quality to the original broadcast clip, (2) it sums up my reaction to the game on Saturday, and (3) in doing so, it is being used to commentate on the topic directly.
Copyright Law's Purpose & Its Connection to Sports in the Digital Age
Do not fret if reading about copyright law has you feeling like this Michigan fan's face. Many attorneys would agree that copyright law is not easy to grasp, but it is becoming progressively relevant, notably with sports.
Our copyright system, which once concerned itself with traditional "commercial" (make money, make money) uses, is moving further into the consumer's home to reach "personal" uses that may be commercial in nature or simply unlicensed uses. This. Is. Kind of. Very. Extremely. Intimidating. The commercial use idea has received a broadened definition to where we should not take our common, everyday enjoyment of copyright-protected content for granted.
You know, it would be the NFL to fight and try to manhandle the most central fundamental right we have in our Constitution, free speech under the First Amendment...
Intellectual property is like the onion of the sports industry. So, thank you for being open to learning about one piece of a topic that has many, many layers. Now you know a bit about the DMCA, why we have copyright laws, and how you can protect yourself on either side of the conversation!