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Volume 21 No. 34
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What benefits do leagues see by blocking content on Twitter?

Editor’s note: The following column is derived from “GIF-Gaffe: How Big Sports Ignored Lenz and Used the DMCA to Chill Free Speech on Twitter,” pending in Volume XXVII of the Fordham’s Intellectual Property, Media & Entertainment Law Journal.

Sports fans in this digital age have become accustomed to scrolling through their Twitter feeds to view an array of short video clips created by fellow Twitter users. These clips include the increasingly popular formats of GIFs, compressed videos of indeterminate but typically short length, and Vines, looping video clips of a maximum of six seconds in length.

These GIFs and Vines themselves are created using copyrighted broadcast content of various professional and collegiate sports leagues. However, sports leagues seek not only to control their own copyrighted content, but also to maximize monetization of those highlights on Twitter or their own official league websites.

This past fall a well-documented takedown of user content occurred on Twitter over a two-day period after Digital Millennium Copyright Act Section 512 takedown notices were submitted by sports leagues including the NFL, MLB and the UFC. The leagues’ action led to the blocking of alleged infringing GIFs and Vines on the Twitter accounts of popular sports-related websites Deadspin, Barstool Sports and SBNation. Subsequently, those accounts were temporarily suspended from the service.

Under the DMCA, a copyright owner may submit a takedown notice to Twitter in which it identifies allegedly infringing content to be removed or blocked from the service. Twitter, as a service provider, is shielded from liability to both copyright owner and Twitter user by complying with the notice and notifying the user of the action and the user’s right to file a counter-notice so that the material may be restored within 10-14 days. Twitter, a financial partner of the NFL and other sports leagues, has no interest in jeopardizing those relationships through noncompliance with its partners’ takedown notices, nor would it want to risk legal action against the service itself.

Fewer than 1 percent of users file counter notices to have material restored to Twitter. A user filing counter notification under the DMCA must include a statement under penalty of perjury that the material was removed by mistake or misidentification and must consent to the jurisdiction of a federal district court. On Twitter, where more recent posts quickly replace each 140-character maximum post, it is safer to submit to being silenced than to delve into possible legal action. Thus far there has not been a case adjudicated in a U.S. court involving GIFs or Vines.

Under U.S. copyright law, a copyright owner has the exclusive right to create a derivative work, reproduce a work, and publicly distribute copies of a work such as a broadcast sporting event. Sports leagues likely view GIFs and Vines as derivative works of their copyrighted content that only they have the right to distribute. However, fair use is a limitation of these exclusive rights and allows those without copyright ownership to use a work for certain purposes including parody, criticism, comment and news reporting.

In a recent case, Lenz v. Universal, the 9th U.S. Circuit Court of Appeals held that fair use is an affirmative right and a copyright owner must subjectively consider the four factors that determine fair use before submitting a takedown notice. However, because the standard was found by the court to be subjective and not objective, the copyright owner need not be correct in its fair use analysis, but only believe they are correct.

An issue in complying with Lenz is the use of agents by leagues to file hundreds of takedown notices to many different service providers, including Twitter. Those agents now need to be able to understand fair use and analyze each and every alleged infringement individually before deciding whether to submit a takedown notice. Absent that fair use analysis, leagues could be liable to the user claiming fair use.

Following the UFC’s April 2016 fight between Jon Jones and Ovince Saint Preux, UFC’s official Twitter account posted media of the fight that was embarrassingly blocked after Twitter received a DMCA takedown notice. Most likely either the UFC or its agent did not assess fair use and to whom they were sending the notice or an internet troll filed an illegal takedown notice, with which Twitter complied. Either scenario reveals problems within the DMCA and highlights why Twitter users face an uphill battle to avoid having material with a valid claim of fair use blocked.

Although the DMCA places sports leagues in a strong position to block content on Twitter, not every league takes the same approach. The NBA and NHL have taken a position opposite that of the NFL, MLB and UFC by generally allowing user-created GIFs and Vines, while valuing the economic opportunities provided to those leagues through free marketing and positive fan interaction. With the NBA and NHL attracting a younger audience than MLB and the NFL, an inference can be made that economic opportunities are being missed by staunchly protecting the potential market to monetize highlights instead of embracing an interconnected world in which fans and users can market those leagues’ overall product for them.

The increased frequency of content with a claim of fair use on Twitter and the obligation for sports leagues to follow Lenz could make takedowns of each and every GIF or Vine that uses a league’s copyrighted content counterproductive. The more notices that are sent, the more likely a user will challenge a league to the point that a court reaches a decision on GIF-related content that could be adverse to the interests of the sports leagues.

Until that happens, or the DMCA is amended, the question for sports leagues currently is a financial one: What is the economic benefit of user-created GIFs and Vines via marketing, promotion, and fan interaction to the leagues, and does silencing them to direct more internet users to monetized official league highlights actually benefit the leagues?

Andrew T. Warren (awarren@law.gwu.edu) is a practicing attorney, graduate of George Washington University’s Master of Laws program in intellectual property, and a former NHLPA certified agent.