A couple of firms that specialize in policing copyrights online on Monday told Twitter (TWTR) to take down posts that included short video clips of professional and college football games. Twitter leapt into action, not just pulling the posts in question, but also suspending the accounts of the alleged copyright infringers.
The twist in this case was that the accounts didn't belong to hackers or typical video pirates, but to Gawker Media's Deadspin and Vox Media's SBNation, two prominent sports news sites. Deadspin's Twitter account, which has almost 1 million followers, was restored within a few hours. The SBNation takedown affected a secondary Twitter account that posts sports GIFs -- it's still offline.
In an age when ever more news flows directly through social media channels like Twitter, Facebook (FB) and Snapchat instead of traditional media web sites, rapid takedowns and suspensions raise questions about whether current laws strike the right balance between protecting copyrights and permitting fair use of material by journalists. When media organizations post stories or videos to their own web sites, they can make the immediate decision about whether to remove challenged content. But social media networks may have very different priorities, fueled by pleasing advertisers while lacking the media's traditional separation of editorial and business.
In this case, Twitter had its own partnership with the NFL for sharing video clips. "Journalism is living on a platform that has a partnership with what's being covered," notes Parker Higgins, director of copyright activism at the Electronic Frontier Foundation. "That gets really dicey." Higgins' organization has helped some users sue to block copyright take down requests, including a recent victory in the case of a baby video that included a Prince song.
While the requests from the monitoring agencies hired by the NFL, NCAA and UFC may not have concerned the most important journalism of the day, the same law has been used to challenge online reporting of hacking incidents, the Church of Scientology and mistreatment of animals, among many other more serious issues. The clashing priorities of media and technology companies was also evident in Apple's (AAPL) recent decision to disable its News app in China and Twitter cutting off access to a site that archived deleted tweets of politicians.
Twitter and Gawker Media did not respond to requests for comment about this week's controversy. Vox's SBNation said it was working with Twitter to restore its single, suspended account. "We take copyright infringement issues seriously and always try to keep our use of unlicensed third-party footage within the bounds of fair use," the company said in a statement.
The NFL issued a statement saying it had asked Twitter to remove the video clips but did not request any accounts be suspended.
Sometimes, it's ordinary Twitter users who get into trouble by posting sports videos. Twitter said it took down 30 accounts of users of its live video broadcasting app Periscope who were showing the Pay-Per-View Mayweather-Pacquiao boxing match in May, for example. The company said it received 14,694 takedown requests from copyright holders and pulled the affected material 67% of the time in the first six months of 2015. The company's Vine app got 2,405 requests and complied in 68% of cases. The new live video app Periscope, launched in late March, received 1,391 removal requests and pulled material 71% of the time.
Copyright law in the age of Twitter
The challenge and takedown process is set out in the 1998 Digital Millennium Copyright Act (DMCA). Under the law, companies like Twitter that host user-made content on the Internet cannot be held liable for copyright infringement by their users as long as they agree to remove offending content after being notified by the rights holder. And the law specifies that accounts of repeat offenders should be suspended. The law also sets out penalties for rights holders who abuse the takedown process, though courts have rarely imposed them.
Some lawyers said the law is working as designed. David Powsner, an intellectual property attorney at Nutter McClennen & Fish, says the law is meant to provide "a relatively low overhead mechanism for addressing accused infringements," whether on a web site or social media network.
"The overall purpose of that law remains applicable, whether in today's social media-driven environment or yesterday's digital media publishing environment," says Powsner.
Some in the media business were more critical, however. "Gratuitous, unexplained censorship is indefensible," sports pundit Keith Olbermann tweeted.
Joe Karaganis, vice president at the American Assembly who helps run a research network on DMCA notices and takedowns, says he disagrees with Twitter's decision to get rid of the sports videos. "They'd be better served by defending fair use," he says. But Karaganis is even more worried about the future, as automated systems pre-screen media content for potential copyright violations before posting.
"The DMCA, for all its problems, prioritizes speech -- publish first, take down later," he says. "The filtering systems privilege rights-holder claims, with user rights buried in arbitrary terms of service, not statutory protections."
Aside from the legality of posting short video clips on Twitter, some have also questioned whether the sports leagues themselves are making the right call in quashing unofficial posts. The NFL's own Twitter feed is filled with somewhat longer clips laden with advertising, as opposed to the more shareable clips others have posted.
"Seriously — suspending Twitter accounts b/c they post sports GIFs doesn’t make more people go to NFL games It makes us all hate the NFL more," tweeted Christina Warren, senior tech correspondent at Mashable.