Eye on <i>Lenz</i> In Light of NFL Takedown Notices

In October, after receiving takedown requests from the National Football League and two college athletic conferences citing the Digital Millennium Copyright Act (DMCA), 17 U.S.C. '512 (1998), Twitter suspended two sports news feeds that feature short clips of football highlights. Although a firestorm of online protest led Twitter to restore @Deadspin in about an hour, and Deadspin editor-in-chief Tim Marchman crowed that “the Internet kind of told the NFL and Twitter to eat shit,” the disputed video footage remained blocked when Marchman spoke.

@SBNationGIF, another feed that's heavy on sports-related Vines and GIFs, was restored later in the week, with much of its content replaced by a frowny face and the message, “Oops, we couldn't find it.”

The disruptions come one month after the U.S. Court of Appeals for the Ninth Circuit ruled in an unrelated case that copyright holders must take fair use into account before sending takedown notices to Internet service providers under the DMCA. Lenz v. Universal Music Corp., 13-16106 (Ninth Cir. Sept. 14, 2015). But while that ruling has been hailed as a win for Internet users, it also includes some fine print that could strengthen the hand of copyright holders ' leaving lawyers for copyright holders and Internet publishers searching for bright lines.

The appeals court said copyright holders won't be penalized for sending a takedown notice so long as they have a good-faith belief that a use was infringing, and the appellate judges blessed the use of algorithmic technology ' or bots ' to determine fair use. Both sides told the Ninth Circuit they were considering petitions for rehearing.

University of California-Hastings professor Ben Depoorter is skeptical that bots can make accurate calls on fair use, an issue that is notoriously fact-intensive. Without human oversight, bots contribute to “false positives “takedowns of content that is fair use, properly licensed or noninfringing for other reasons,” he said.

Technically, it was not the NFL that sent takedown notices to Twitter. It was NetResult Solutions Ltd., a London-based company that “monitors the entire Internet” to enforce copyright compliance for its clients, according to its website. “On behalf of the NFL, I hereby state that I have a good faith belief that use of the NFL Content in the manner complained of is not authorized by the NFL, its agents, or the law,” states NetResult's Phil Stubbs in each of the 12 takedown notices. Fair use was not explicitly mentioned.

Those 12 notices ' plus one from Zuffa LLC, operator of the Ultimate Fighting Championship ' were apparently enough for Twitter to suspend Deadspin's account.

Deadspin's Marchman blamed the bots. “They have robots that go through Twitter and look for content that the NFL says it has sole and proprietary right to make money off of,” he said in the podcast. But the GIFs Deadspin publishes are fair use, he said, because they're “in the line of commentary, illustration, criticism. It is transformative.”

“NFL blooper GIFs are NFL blooper GIFs,” he added, “but it's scary when a third party can go to another third party and have your stuff taken down.”

The NFL told Politico that it did not ask Twitter to suspend Deadspin's account, just to disable its links to infringing content.

SB Nation's GIF site was suspended after XOS Digital sent eight takedown notices targeting about 50 Vines and GIFs. “We take copyright infringement issues seriously and always try to keep our use of unlicensed third party footage within the bounds of fair use,” SB Nation's owner, Vox Media Inc., said in a written statement.

A spokesperson for Twitter said the company doesn't comment on individual accounts. The company forwards copies of all of its takedown requests to the Chilling Effects Clearinghouse to help Internet users understand their rights.

Fair Use Factors

The several factors the Copyright Act directs courts to consider include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality used, and the effect on the potential market for work. It's a flexible test, says Pillsbury Winthrop Shaw Pittman intellectual property partner Peter Hahn. But on the “purpose and character” factor, Hahn says: “It's one thing for an individual to post a sports clip along with some commentary to social media. But if you're putting it up to drive hits to your commercialized website, the likelihood of fair use goes down.”

The fact that the football clips represent only a few seconds out of an hours-long broadcast would favor fair use. But, said Hastings' Depoorter, even some very short segments ' say, the game-winning touchdown ' can have commercial value. “I think it would be hard to say all three-second clips on Twitter are infringing, but it would also be hard to say none of them are,” he said.

Even the Lenz case, which involved a homemade video of a baby dancing in a kitchen while a Prince song played in the background ' was not a clear-cut fair use, based on the Ninth Circuit judges' comments during oral arguments last summer.

Stephanie Lenz's attorneys at the Electronic Frontier Foundation (EFF) and Keker & Van Nest had argued in their brief that “there is no serious question that it is fair use.” But Circuit Judge Mary Murguia repeatedly asked Universal's attorney if he conceded the point, and Circuit Judge Richard Tallman said “the three of us [on the judicial panel] are really struggling with whether this is or is not fair use.”

In the end, the Ninth Circuit ruled that copyright holders must consider the possibility of fair use before sending out takedown notices or face liability under the DMCA. But, the court also concluded, the copyright holder's fair-use evaluation need not be objectively reasonable. So long as the determination is made in good faith, “we are in no position to dispute the copyright holder's belief even if we would have reached the opposite conclusion,” Judge Tallman wrote for a 2-1 majority.

“We note, without passing judgment,” Tallman added, “that the implementation of computer algorithms appears to be a valid and good-faith middle ground for processing a plethora of content while still meeting the DMCA's requirements to somehow consider fair use.”

Hastings' Depoorter said he believes such programs can be “a useful first step” for identifying potentially infringing content. But without human review, there's significant potential for false positives, such as when a bot shut down the only webcast of the Hugo Awards for science fiction in 2012. The airing of a video clip from a winning TV show triggered the copyright bot, even though the awards organizers had obtained a license.

Scott Graham is an Appellate Reporter with The Recorder, the San Francisco-based ALM sibling of Entertainment Law & Finance.

In October, after receiving takedown requests from the National Football League and two college athletic conferences citing the Digital Millennium Copyright Act (DMCA), 17 U.S.C. '512 (1998), Twitter suspended two sports news feeds that feature short clips of football highlights. Although a firestorm of online protest led Twitter to restore @Deadspin in about an hour, and Deadspin editor-in-chief Tim Marchman crowed that “the Internet kind of told the NFL and Twitter to eat shit,” the disputed video footage remained blocked when Marchman spoke.

@SBNationGIF, another feed that's heavy on sports-related Vines and GIFs, was restored later in the week, with much of its content replaced by a frowny face and the message, “Oops, we couldn't find it.”

The disruptions come one month after the U.S. Court of Appeals for the Ninth Circuit ruled in an unrelated case that copyright holders must take fair use into account before sending takedown notices to Internet service providers under the DMCA. Lenz v. Universal Music Corp., 13-16106 (Ninth Cir. Sept. 14, 2015). But while that ruling has been hailed as a win for Internet users, it also includes some fine print that could strengthen the hand of copyright holders ' leaving lawyers for copyright holders and Internet publishers searching for bright lines.

The appeals court said copyright holders won't be penalized for sending a takedown notice so long as they have a good-faith belief that a use was infringing, and the appellate judges blessed the use of algorithmic technology ' or bots ' to determine fair use. Both sides told the Ninth Circuit they were considering petitions for rehearing.

University of California-Hastings professor Ben Depoorter is skeptical that bots can make accurate calls on fair use, an issue that is notoriously fact-intensive. Without human oversight, bots contribute to “false positives “takedowns of content that is fair use, properly licensed or noninfringing for other reasons,” he said.

Technically, it was not the NFL that sent takedown notices to Twitter. It was NetResult Solutions Ltd., a London-based company that “monitors the entire Internet” to enforce copyright compliance for its clients, according to its website. “On behalf of the NFL, I hereby state that I have a good faith belief that use of the NFL Content in the manner complained of is not authorized by the NFL, its agents, or the law,” states NetResult's Phil Stubbs in each of the 12 takedown notices. Fair use was not explicitly mentioned.

Those 12 notices ' plus one from Zuffa LLC, operator of the Ultimate Fighting Championship ' were apparently enough for Twitter to suspend Deadspin's account.

Deadspin's Marchman blamed the bots. “They have robots that go through Twitter and look for content that the NFL says it has sole and proprietary right to make money off of,” he said in the podcast. But the GIFs Deadspin publishes are fair use, he said, because they're “in the line of commentary, illustration, criticism. It is transformative.”

“NFL blooper GIFs are NFL blooper GIFs,” he added, “but it's scary when a third party can go to another third party and have your stuff taken down.”

The NFL told Politico that it did not ask Twitter to suspend Deadspin's account, just to disable its links to infringing content.

SB Nation's GIF site was suspended after XOS Digital sent eight takedown notices targeting about 50 Vines and GIFs. “We take copyright infringement issues seriously and always try to keep our use of unlicensed third party footage within the bounds of fair use,” SB Nation's owner, Vox Media Inc., said in a written statement.

A spokesperson for Twitter said the company doesn't comment on individual accounts. The company forwards copies of all of its takedown requests to the Chilling Effects Clearinghouse to help Internet users understand their rights.

Fair Use Factors

The several factors the Copyright Act directs courts to consider include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality used, and the effect on the potential market for work. It's a flexible test, says Pillsbury Winthrop Shaw Pittman intellectual property partner Peter Hahn. But on the “purpose and character” factor, Hahn says: “It's one thing for an individual to post a sports clip along with some commentary to social media. But if you're putting it up to drive hits to your commercialized website, the likelihood of fair use goes down.”

The fact that the football clips represent only a few seconds out of an hours-long broadcast would favor fair use. But, said Hastings' Depoorter, even some very short segments ' say, the game-winning touchdown ' can have commercial value. “I think it would be hard to say all three-second clips on Twitter are infringing, but it would also be hard to say none of them are,” he said.

Even the Lenz case, which involved a homemade video of a baby dancing in a kitchen while a Prince song played in the background ' was not a clear-cut fair use, based on the Ninth Circuit judges' comments during oral arguments last summer.

Stephanie Lenz's attorneys at the Electronic Frontier Foundation (EFF) and Keker & Van Nest had argued in their brief that “there is no serious question that it is fair use.” But Circuit Judge Mary Murguia repeatedly asked Universal's attorney if he conceded the point, and Circuit Judge Richard Tallman said “the three of us [on the judicial panel] are really struggling with whether this is or is not fair use.”

In the end, the Ninth Circuit ruled that copyright holders must consider the possibility of fair use before sending out takedown notices or face liability under the DMCA. But, the court also concluded, the copyright holder's fair-use evaluation need not be objectively reasonable. So long as the determination is made in good faith, “we are in no position to dispute the copyright holder's belief even if we would have reached the opposite conclusion,” Judge Tallman wrote for a 2-1 majority.

“We note, without passing judgment,” Tallman added, “that the implementation of computer algorithms appears to be a valid and good-faith middle ground for processing a plethora of content while still meeting the DMCA's requirements to somehow consider fair use.”

Hastings' Depoorter said he believes such programs can be “a useful first step” for identifying potentially infringing content. But without human review, there's significant potential for false positives, such as when a bot shut down the only webcast of the Hugo Awards for science fiction in 2012. The airing of a video clip from a winning TV show triggered the copyright bot, even though the awards organizers had obtained a license.

Scott Graham is an Appellate Reporter with The Recorder, the San Francisco-based ALM sibling of Entertainment Law & Finance.