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

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Heath Miller of the Pittsburgh Steelers makes a reception at the 1-yard line while defended by Brandon Flowers of the San Diego Chargers at Monday's game in San Diego, Calif.

Football's popularity has made it among one of 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 non-profit 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. and 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, and adds:

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

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