Twitter's Suspension Of Sports Media Revives Debate Over Fair Use

Oct 13, 2015
Originally published on October 23, 2015 6:12 pm

Football's popularity has made it among the most lucrative business franchises. So it should come as no surprise that the NFL and other organizations holding the broadcasting rights to games felt very strongly about Deadspin and SB Nation, popular sports publications, attracting readers by posting highlights on Twitter.

What came next were complaints of copyright violations. Then came Twitter's suspension of the accounts. Now comes the question: Do GIFs of sports highlights qualify as fair use?

Parker Higgins, director of copyright activism at civil liberties nonprofit Electronic Frontier Foundation, says that may be the case.

"It's a very small portion of the original," he says. "It's in a different context, because there's no sound. It's not surrounded by game footage. It does seem like some of these could be fair use."

Fair use, or "fair dealing" as it's known in other countries, allows people to reproduce copyrighted material for purposes such as criticism, comment, news reporting, teaching or research. The U.S. test for fair use involves four steps that evaluate:

  1. The purposes of the use (is it commercial?)
  2. The nature of the copyrighted work
  3. How big of a portion is being reproduced
  4. How the reproduction will impact the potential market for or value of the copyrighted work

Disputed uses are often settled in court, and Twitter's own policies say fair use cases are determined on a case-by-case basis. Its transparency reports show that in the majority of the cases, the company does remove material from its website.

In the instance of complaints from the NFL, the Southeastern Conference, the Big 12 Conference and the Ultimate Fighting Championship, Deadspin's Twitter account was quickly restored, while the SBNationGIF account remained suspended as of Tuesday evening.

Vox Media, which owns SB Nation, says it's working with Twitter to resolve the issues. Vox's statement also said the company always tries to "keep our use of unlicensed third party footage within the bounds of fair use."

Both publications should have known better, says Forrester Research analyst (and football fan) Nate Elliott.

"I don't know if it's the exact wording, but if you're like me, every Sunday at least twice you heard, 'Images, pictures and descriptions may not be used without the express written consent of the National Football League,' " Elliot says.

Nu Wexler, a Twitter spokesman, says the company does not comment on individual accounts, though he shared links to the individual complaints involved, which have now been posted in the Chilling Effects database that tracks requests to remove online content.

The media companies theoretically could dispute the sports organizations' complaints. Deadspin's owners at Gawker Media don't plan to sue the NFL "at this time," says Acting Executive Editor John Cook, who adds:

"But its contempt for its fans — and Twitter's contempt for its users — is baffling to us."

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Twitter is going after sports news sites that share football highlights without permission. It suspended two accounts after the NFL and another company filed takedown notices. They claimed video clips showing even a few seconds of game footage violated their copyrights. NPR's Laura Sydell reports.

LAURA SYDELL, BYLINE: The video clips posted are known as GIFs. They're usually a few seconds of footage, like a moment when a player got mad or threw a great pass. Nate Elliott, an analyst at Forrester Research, says the two media organizations who had their accounts taken down, Deadspin and an SB Nation site devoted to GIFs, should've known better. Elliott's a football fan.

NATE ELLIOTT: I don't know if it's the exact wording, but if you were like me, every Sunday, at least twice, you heard, images, pictures and descriptions may not be used without the express written consent of the National Football League.

SYDELL: Twitter suspended both the Deadspin and SB Nation accounts. Deadspin is now back up, but in a statement, Vox Media, which owns SB Nation, said it's working with Twitter to resolve the issues and that it always tries to, quote, "keep our use of unlicensed third-party footage within the bounds of fair use."

And that's crucial here, says Parker Higgins with the Electronic Frontier Foundation, a nonprofit that works on civil liberties in the digital world. The sports leagues can sell exclusive rights to these games, but sports media organizations do have a right to use short clips if they're making commentary. Higgins says that could be the case with at least some of these clips.

PARKER HIGGINS: It's a very small portion of the original. It's in a different context 'cause there's no sound. It's not surrounded by game footage. It does seem like some of these, certainly, could be fair use.

SYDELL: But when Twitter gets a complaint, it is obligated by law to take down the footage. Otherwise, it can be sued for damages.

HIGGINS: Twitter can't really afford to be as outgoing and speech-protective as they'd like to be in the copyright space because they have that copyright liability that can be $150,000 per infringement.

SYDELL: Higgins notes that Twitter has been less aggressive at taking down tweets that involve abuse against someone, and he charges that it's the money issue that makes the difference. Twitter would not comment on that charge, but the company does have a financial partnership with the NFL. And at a moment when it's under pressure from Wall Street and it's just laid off 8 percent of its workforce, it might not be up for taking big risks with a giant like the NFL. Laura Sydell, NPR News. Transcript provided by NPR, Copyright NPR.