"GOALLLLLLLL," Lionel Messi! First came the Vine recap.
Then came the takedown notice.
There exists no better method in 2014 to quickly slice up and share online a moment of World Cup glory than the mobile app Vine -- and it turns out, no faster way to earn yourself a legal threat from a media conglomerate that happens to own the rights to that sports moment.
Vine is the Twitter-owned social networking service launched last year that gives users a handy toolkit for chopping up video into digestible 6-second loops that are as easily disseminated as tweets and even easier to capture, upload, and view than any competing service. For sports junkies and news websites, Vine has been a godsend allowing the lightning-fast creation of highlights readymade to go viral.
But Vine's ubiquity also raises new and difficult questions about the extent of fair use protections in the digital era. That decades-old legal concept shields individuals and news organizations from a rights-holder's claim of infringement. But technology advancements in the digital age have now created a considerable gray area. With new communication tools like Vine, for instance, anyone can simply aim a smartphone at the television or a laptop livestream to snag copyright-protected footage. And not surprisingly, the copyright holders are not applauding from the sidelines.
Instead, soccer's global governing body, FIFA, alongside its rights-holding partners ESPN and Spanish-language broadcaster Univision, are firing off takedown notices over six-second World Cup clips as quickly as they can find them on the Internet, getting news sites' Vine accounts suspended in the process.
Big bucks are at stake. These companies paid millions of dollars to FIFA for the right to broadcast and legally own the footage. ESPN paid $100 million while Spanish-language broadcaster Univision forked over $325 million for the 2010 and 2014 tournaments. Fox paid $425 million alone back in 2011 for the rights to the 2018 and 2022 World Cups.
The legal murkiness over a six-second smartphone clip illustrates, yet again, that when technology moves fast, traditional industries tense up and crack down.
"This sort of over-aggressive enforcement of copyrights and trademarks around the World Cup -- you see it around the Olympics too -- it has become a hallmark of major world sports events," said Mitch Stoltz, an attorney with the Electronic Frontier Foundation specializing in intellectual property law.
"There's almost a split personality going on," he added. "The organizers want people to engage with it and to engage with it on social media with all their tech, but at the same time they want to assert a lot of control over what ordinary people do. Copyright and trademark are the tools they use."
The World Cup, as the world's largest sporting event, still has a little less than two weeks to go until the final game. Yet the tournament has already become a social media phenomenon, garnering an unprecedented breaking online streaming records with ease. Vine, which of course did not exist when the last World Cup was held four years ago, is on the front lines of the social media onslaught. People have used it to spread just about every goal, goofy on-field antic, or pitch-rushing law-breaker.while
Yet, cross an unclear copyright line or, even worse, be large enough to compete with the likes of ESPN, and suddenly the friendly social media relationship sours.
More than a matter of six seconds
It's unclear who is, legally speaking, right and wrong when it comes to interpreting fair use here. Fair use does not have a so-called bright line definition but instead involves a four-factor criteria that takes into account context and circumstance, Stoltz explained. What it does not have, however, is a clear-cut Vine clause.
"Six seconds is short and that does suggest that most, not all, Vine clips are going to be fair use, but you also look at the purpose. You look at whether it's more of a news report. News reporting is one of the purposes specifically called in the law," Stoltz explained.
Despite that ambiguity, sending a takedown notice first and asking questions later (or never) is not a fan-friendly practice. Stoltz said it creates an atmosphere where few will feel willing to question large, powerful companies on potentially fair and legal use of their footage. "It's not good for the public -- and it's probably not good for business either," he said.
This isn't the first time Vine has been caught up in fair use disputes. The service became embroiled early on in its existence in a copyright dispute initiated by the musician Prince, a notoriously steadfast defender of his personal intellectual property. In fact, Prince once sued a mom over a YouTube video of her infant daughter dancing to "Let's Go Crazy" (that was in fact deemed fair use). Prince and his record label NPG sent the first DCMA takedown requests over Vines featuring his music, but no legal precedent has yet established a definitively safe or unsafe way to feature copyright-protected media on the social network.
Rights-holders are, at the very least, using discretion and not performing blanket takedowns on any and all perceived infringements it can round up. ESPN and Univision are specifically targeting Vines featuring content with the highest replay value. That means the match-decided goals, misses, and saves that turn the tides are being scrubbed, as broadcasters would rather you not venture to other sources (and away from its advertisers) to get your World Cup highlight fix.
"They don't seem to mind people Vine-ing funny stuff like fans," Clay Wendler, sports news site SB Nation's expert Vine and GIF maker, told The Wall Street Journal.
SB Nation, known for its quick tweeting of standout sports moments during live games, has had two Vine accounts suspended by Twitter, the organization said. However, the site continues to tweet out Vine videos of goals, the very type of highlight that earned it those suspensions. Numerous other sites from Slate.com to sports site Bleacher Report have been forced to remove content directly posted to its website, such as round-up and highlight videos. Individual Twitter users on the other hand are getting takedown threats and receiving account suspensions over the use of FIFA's logo in profile pictures or any of its other trademarked iconography in a way that FIFA feels is unjust.
Though tight-lipped on its policies, ESPN and Univision, which only assist FIFA and are not solely responsible for policing infringements, said in a statement that they are sending takedowns over content they "believe encroach on our license rights."
Twitter is forced to play along because it would rather not be involved in a fair use dispute. Thanks to the Digital Copyright Millennium Act of 1998, companies cannot be held responsible for certain types of content users post to their websites. They are protected by a safe haven clause, which is precisely why Twitter can't get sued over what users post to Vine. The same protection applies to Google and YouTube, which it owns.
But Twitter, as an intermediary, still remains responsible for addressing DCMA takedown notices, which it tends to do quickly and without question. The company says it responds to formal reports of alleged copyright infringement and then offers instructions to affected parties on how to appeal a removal by submitting a complaint counter-notice.
"We send all received reports to Chilling Effects, who posts them publicly, and report the number of DMCA notices and counter-notices we receive in our semi-annual transparency report," Twitter spokesperson Jim Prosser said.
You can still appeal the takedown. But that takes days and is almost certainly not worth engaging in when you're squaring off against a powerhouse media company with deep financial pockets. That's exactly why attorney Wendy Seltzer named her organization Chilling Effects and gave companies a tool to publicly disclose the legal orders they're issued.
"They [broadcasters] want to benefit from social media," Stoltz said. "And at the same time want to control how people use social media."
If past is prologue, this may not be the final coda. When music fans first began posting songs online, Hollywood got the courts to shut down Napster. By then, however, the file-sharing technology had escaped into the wild and the industry remained always a step behind its users. In the current crackdown against Vine videos, the big media companies clearly have money and lawyers on their side.
But history has shown that the Internet can't easily be controlled and even a stern legal warning may not be enough to stop someone with a smartphone with an urge to share.