Our days of posting our favorite baseball highlights on Twitter might be coming to an end, if they haven’t already. Recently, it appears as if MLB Advanced Media has been requesting that Twitter remove GIFs (technically, GIFs uploaded to Twitter are converted into video files, but the idea remains) that they believe violate copyright laws. It’s a move that’s both within the rights of MLBAM, yet still slightly confusing from a fan-engagement standpoint. If this is a harbinger of things to come, then our days sharing sports GIFs with our friends and followers might soon be over.
As it happens, MLB had a video of the same highlight on their site. Now, Jeff’s GIF would be in violation of copyright whether MLB had their own highlight posted or not, it just seems like more than a coincidence. In the full email the above picture is referencing, there were other reported tweets from different Twitter users — notably @cjzero, who posts many videos of various sports through the social media platform. Sullivan believes this to be a mistake.
“Weirdly, in the same email, I saw notice of identical complaints filed about @cjzero and @megrowler. I probably wasn’t supposed to see those but multiple people responsible for this are stupid,” he said.
However, it shows that he is not the only one being targeted in this new development.
The idea is simple. MLB sees a GIF of a play or highlight and notices that they have the same video hosted on their web site. However, when the video is viewed on their web site, an ad is played beforehand. On Twitter, it’s not. MLB loses a (probably very tiny) source of revenue. MLB asks Twitter to take it down, Twitter complies.
(Note, I am not a lawyer. The following is simply my speculation based on the fact that I am a reasonable human adult)
Is it a violation of copyright laws? Yes. Well, probably. It all depends on your (or a judge’s) take on what’s fair use. There was actually a big decision in the courts recently about media takedowns and fair use. In what’s now known as the dancing baby case (no, not that dancing baby), a parent was instructed by YouTube to take down a video they had posted of their baby because the radio in the background was playing a song by Prince. The video taker, Stephanie Lenz, along with the Electronic Frontier Foundation sued Universal Music Group (the copyright holder) claiming that Universal did not consider fair use before ordering the video’s removal. Eventually, the United States Court of Appeals for the Ninth Circuit ruled in Lenz’s favor. The gist is that Lenz didn’t just post a Prince music video, but a video in which the song happened to be playing. It falls under the umbrella of fair use.
There are four basic factors of fair use:
- the purpose and character of your use
- the nature of the copyrighted work
- the amount and substantiality of the portion taken, and
- the effect of the use upon the potential market.
Lenz’s claim most likely falls under the first. Lenz did not post the video with the intent of allowing people to listen to Prince for free. If Jeff Sullivan (or anyone else effected by MLBAM’s new attitude) wanted to contest their treatment, they might have some ground to stand on, but it would be shaky. Number three seems plausible if you take the length of a clip against the length of a whole game, but as I’m sure MLBAM considers a highlight to be just as much copyrighted as an entire game.
In the long run, fighting a copyright claim probably isn’t worth it. It is worth it, however, to question just who is being served here. Major League Baseball is worth over $30 billion. Are they really going to cry “poor” when some people don’t have to watch a T-Mobile ad before a highlight of a home run? And, to me, the chance to screw over MLB isn’t in most poster’s interests either. The point is simple — GIFs play right in the browser when scrolling through Twitter. Sure, people can link the MLB clip, but it would involve extra clicking. Is it a big deal? Not really. But the immediacy of it all is what makes Twitter Twitter.
Let us not forget that nearly every baseball GIF people post enhances MLB’s brand. The NBA figured this out early. They let anyone with iMovie and some time post highlights, mash-ups, parodies, etc. to YouTube, Twitter, Facebook, and the like. If you want to find a baseball clip on YouTube, you better hope that MLB has posted it themselves. Otherwise, there are no others to be found.
Because of my experience as a baseball writer, I immediately wondered about MLB’s new stance impacting baseball sites and blogs. A lot of writers use GIFs for analysis or to drive home a point. Are we to believe that this practice will be in jeopardy? Sullivan doesn’t think so, at least for right now.
“I’ve never heard of MLBAM complaining about gifs used at FanGraphs,” he said in an email correspondence. “Similarly, I don’t recall ever getting a complaint about gifs I used at SB Nation or Lookout Landing. Maybe something just slipped my mind, but there’s never been anything systematic. It seems they’re mostly okay with gifs used in the context of analysis, but viral stuff on Twitter — that gets their attention. Maybe because they’re trying to establish their own social presence and they want something approximating a monopoly of coverage. But this is speculation! I’m probably going to keep trying #pitchergifs because I’m a dangerous rebel who likes danger.”
I did reach out to MLBAM for comment, but have not heard back as of this writing. In the interest of full disclosure, my email provider did go down for about 20 minutes this morning. It’s unlikely that they tried to reach me then, but I mention it just in case. In truth Major League Baseball — a sports league that has a very large and powerful media empire named after it — has been fairly tone deaf when it comes to these types of things. Recently, they’ve made a big push with things like Cut4 and their Twitter account to promote their game. It’s a shame that they view other people, fans who want to help them out for free, simply as copyright violators. The fans are on MLB’s side on this one. At least for now. If this behavior continues, they might start losing some of their most connected and promotional fans. That would be a shame for both sides.