Sports Franchises Call a Foul on Social Media

By Max McGee, Jon Dimuzio and Caralyn Dienstman

When Tyler Andersen of Jacksonville, Florida attended the 2013 NASCAR Daytona 500 on February 24th 2013 in Daytona Beach, Florida, he thought it would be another exhilarating eventful day that the young Florida State student would get to have during his college years. Looking back at that day, exhilarating is definitely a term that may be more of an understatement (Tompkins).

A car crash that injured 14 cars on the final lap and injured 33 spectators transpired right in front of Tyler and he did what any person would have done in this day and age. He took out his smartphone and documented what had occurred feet in front of him. He uploaded the video to YouTube (Tompkins).

NASCAR claimed copyright infringement, which prompted YouTube to take the video down, but the website soon reversed its decision.

NASCAR Vice President of Digital Media Marc Jenkins flat out admitted it used the assertion of a DMCA (Digital Millennium Copyright Act) copyright violation to have the video removed knowing full well no violation had been committed.

We found a way to get into contact Andersen on Twitter and we exchanged private messages of what he could recall from that day of controversy. Anderson stated, “You expect a few wrecks and some big ones with it being Daytona but you never expect something like that. Especially one that causes harm to the fans.” In this particular scenario, and many instances similar to it, social media poses a threat to the sporting industry. It is this threat caused by the recent social media phenomenon that has lead to fans signing over rights of their still images and video’s they gather from various games over to national athletic organizations like NASCAR.

The act of whipping out a smartphone at a moments notice to record any given live phenomenon has become almost second nature for most millennials. Uploading classic images and videos on social media, is a quick and easy way to gain attention and keep the public in the loop. Images such as those from a 2004 brawl that broke out during an Indiana Pacers vs. Detroit Pistons game, demonstrated the epitome of this behavior. The event has since been nicknamed the “Malice at the Palace” is immortalized online. The repeating .gif file is only a few clicks away to anyone with Internet access thanks to the fans and phones that were present to capture the epic moment. It seems copyright infringement actions are one way for professional sports teams to keep control of its product – however under the fair use exception, this tactic doesn’t always give clubs the control they want (Tompkins).

The Fair Use Doctrine outlines exactly what is acceptable when reproducing particular work. Under the Fair Use Doctrine four factors are considered when determining if an image or video has been uploaded fairly. The four factors considered include the following (Tompkins):

  •   “The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes”
  •   “The nature of the copyrighted work”
  •   “The amount and substantiality of the portion used in relation to the copyrighted work as a whole”
  •   “The effect of the use upon the potential market for, or value of, the copyrighted work”

Going off of these four factors, the Daytona crash should not have been taken off of YouTube as it qualifies as “fair use.” Anderson posted video that was not intended to gain commercial profits or to exploit the NASCAR brand, but rather to report on a news incident. Although, Anderson had not originally intended to witness a horrific accident at a sporting event, he did, and therefore “fair use” should have been applied.In order to protect various works, the copyrighting laws hones in on creativity while not applying to ideas, systems and factual information conveyed. Focusing on those “fair use” credentials, NASCAR should not have removed the video from YouTube.

Controversy arose in this situation since Anderson was under the agreement that all footage captured belonged to NASCAR, because it was stated on the back of each his ticket. At the time the crash occurred, Anderson was unaware of this particular policy. Anderson said, “I’ll be honest with you. I didn’t know. But then again I wasn’t expecting that to happen. And I wasn’t the only fan either…I just got tweets telling me it was taken down by NASCAR for copyright.” Journalists and sporting leagues alike want to be able to protect their works and publications in order to make revenue. When it comes to sporting events, different organizations will take different approaches when it comes to regulating various social media and status updates.

The Premier League in the UK took more instantaneous action to control its images during the World Cup in Brazil. Although, legal action was threatened, similar to the Daytona event, there were too many postings for the league to monitor. Instead, videos were taken down from Vine, a smartphone app that enables users to upload six-second video clips. Officials of the Premier League came across clips of goals or highlights from random games on social media that were posted within seconds from when the action was actually broadcasted. The Premier League aggressively monitored the almost live posting to protect the value of the Leagues brand and the commercial rights associated with the brand (Wood).

Although copyright infringement during sporting events has been a long-lasting issue, the rise of Twitter has brought the issue to a whole new level. Erik Manassy, was one of the first die-hard sports fans to join Twitter back in 2006 when the site was first established. Manassy, a Jets fan, Tweets under the name “@e_man,” a handle that currently has over a million followers. Therefore, @e_man is capable of tweeting at least once every thirty seconds. Each tweet tracks and comments on players and plays alike. In 2011 Trustees of Columbia University published the Sports Leagues New Social Media Polices in the Columbia Journal of Law & Art. According to the Sports Leagues New Social Media Policy, “leagues can claim infringement where uploads originate from copyrighted material.”  If a follower is essentially tweeting a play-by-play of the game, then this could qualify as copyright infringement and is not protected under the Fair Use Doctrine. However, if posts are displaying facts then this is considered fair use. In this particular case the NFL went after Twitter, the hosting sight, rather Manassy’s millions of followers who had uploaded tweets. A notice and takedown features of the DMCA were invoked and the NFL succeeded in getting the tweets of the game broadcast, according to jetsrant.com (Hull).

According to ABCNews, There may be no use of film or tape of a game in any manner while that game is in progress.  The network telecasting the game has exclusive rights to that game while it is in progress. The website states that “These Film/Tape Usage Guidelines apply only to distribution via over-the-air or non-standard television. There can be NO use of film or tape of a game on any other media platform including, but not limited to, on a wireless platform or on an internet or online site EXCEPT that such film or tape may appear on an internet or online site only if it is part of a single, non-archived, online “simulcast” of a television station’s regularly scheduled news programming.  “Wireless platform” includes, but is not limited to, cellular, personal communication services and other methods of providing content to handheld digital devices, paging, specialized mobile radio and wireless internet (including Wi-Fi). (ABC News)

In plain English this means that if you are not the media, you should not be filming the game with your wireless device.

On YouTube’s website, they have statements regarding to what happens if there are copyright infringements. It says, “If you are a company and own exclusive rights to a large amount of content that requires regular online rights administration, you may want to apply for access to YouTube’s Content ID system or to our Content Verification Program.

From these various policy statements from organizations such as ABC News or YouTube, it seems the onus is on the individual league or franchise to police possible copyright infringements. Considering that almost everyone has access to use of social media that may be an exercise in futility.

Citations

ABC News. ABC News Network, n.d. Web.

Hull, Michelle R. “SPORTS LEAGUES’ NEW SOCIAL MEDIA POLICIES.”Columbia

Journal of Law & the Arts Spring (2011): 10-12.Http://www.wilmerhale.com/. Web.

Tompkins, Al. “Daytona Crash Video Tests Fair Use, Copyright for Fans and q   Journalists.” N.p., n.d. Web. 18 Dec. 2014.

YouTube. YouTube, n.d.

Wood, Pete. “The Premier League’s War against Its Fans Is

Unwinnable.”Http://www.theguardian.com/. N.p., n.d. Web.

‘Like’ the First Amendment

By Bob Stewart

Employees fired by Hampton County, Virginia Sheriff B.J. Roberts allege that he did so because they “liked” a Facebook page. The page belonged to the candidate running against Roberts in the general election. Though the employment terminations took place about a month after the election that Roberts won, he denies his reasoning related to Facebook.

Six former employees sued Roberts for violating their First Amendment rights in Bland v. Roberts (857 F. Supp. 2d 599), in U.S. District Court. This case appears to be a fair battleground to determine whether or not Roberts fired the employees for expressing their support for his opponent, or as he contends, that unsatisfactory work performance and budgetary concerns were the reasons. However, Roberts moved for summary judgement on the basis that the Facebook “like” was not expression.

Judge Raymond A. Jackson granted summary judgement on that reason. Despite acknowledging Roberts did know about the Facebook “likes,” Jackson opined that a form of expression that simple does not rise to the level of Constitutional protection.

“Simply liking a Facebook page is insufficient,” Jackson wrote in his decision. “It is not the kind of substantive statement that has previously warranted constitutional protection.”

To be sure, this case is as nuanced as social media expression itself. In addition to the Sheriff’s claims that he had good reason to fire the employees, several other layers of protection exist, including the notion of state sovereignty. He also possesses “qualified immunity” according to Jackson. Government employees are immune to civil suits for their decisions as long as, “their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Further, Roberts says he knows he does not have the right to fire employees for expression. In that case, the plaintiffs would have to prove that Roberts knew Facebook “liking” was constitutionally protected expression. But that is all immaterial to whether or not “liking” a Facebook page is actually protected expression.

The summary judgement is being appealed to the 4th Circuit Court of Appeals. Based on prior decisions the summary judgement here should be overturned. The Supreme Court of the United States ruled in Tinker v. Des Moines that wearing black armbands to protest the Vietnam War was protected “speech,” even though no specific message was spelled out (393 U.S. 503). The Federal Courts consider the medium of Facebook an adequate platform for protected speech. In Gresham v. City of Atlanta, the District Court ruled that a police officer’s Facebook posts are protected (10-CV-1301-RWS (N.D. Ga.; May 7, 2012)). The Supreme Court has developed a test that should apply in this case since the act of “liking” a Facebook page is conduct. The Court asks two questions. The first question is to determine whether there is intent to express a message. The second is to determine whether it is likely a witness will understand the message. The court clarified in Texas v. Johnson, a flag burning case, that the witness does not need to understand the exact message (Texas v. Johnson, 491 U.S. 397).

So first, Facebook users express something when they “like” a page or another user’s status or comment. They have read the information or at least know the content of the page before they “like” it. What the expressed message is can vary. So whether the expression would be understood is a fair question. Perhaps the user “likes” something because it is funny, poignant, or it is exactly what he would have written given the opportunity. In the case of a candidate’s page, or that of a group or business, it usually means an endorsement of the candidate or product. Other Facebook users know what that means generally. Evidence of this is that there are many companies, like  “Get-Likes.com” and “fbviro.com,” whose sole purpose is to get your Facebook page more “likes.” Businesses and political candidates pay money for this type of service. So it is fair to say that a “like” is expression that is meant to be positive toward the entity being “liked.” That means the First Amendment is implicated in Bland v. Roberts.

The 4th Circuit should overturn the summary judgement and remand the case back to the District court to hear the case on its merits. There is fair reason to believe that Roberts was ultimately justified in his actions, or at least not liable. But the court should consider the case, not throw it out on an incorrect technicality.

 

Free Speech? Twitter and Facebook Absent in Signing of Universal Free Speech Pact

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By Jord Strohl

A code of conduct to protect online free speech and privacy in restrictive countries was signed by major technology companies such as Google, Yahoo, and Microsoft. The involvement of these three power playing internet companies dates back to 2008, and they hoped that other companies would follow in their lead of a rallying moment for a core cause. Noticeably absent from the free speech pact are social media platforms such as Facebook and Twitter. All of the participating companies that signed the free speech pact are American companies; There is a void in the global initiative of advocating the protection of free speech. Although Facebook and Twitter are widely used by large audiences and activists in other countries in the Middle East and all over the world, they are not involved in this protection of free speech pact. Because free speech laws and the First Amendment only applies to the United States and are not global laws, there is a controversy on whether or not companies who have signed the free speech pact (Google, Yahoo, and Microsoft) have the adequate power and policies to even address the privacy and free speech issues. It is up to independent auditors to examine and interpret whether or not the companies adhere to government demands for user information and to decide whether they store users’ data in countries where free speech is protected. Susan Morgan, the executive director of the Global Network initiative, said that, “Recent events really show that the issues of freedom of expression and privacy are relevant to companies across the board in the technology sector, things really seem to be accelerating.” Facebook and Twitter have made a positive impact on freedom by highlighting the crucial role technology can play in the world’s most closed societies, which leaders of the initiative say makes their efforts even more important.

The code of conduct states that companies must try “to avoid or minimize the impact of government restrictions on freedom of expression” and protect user privacy when demands by government “compromise privacy in a manner inconsistent with internationally recognized laws and standards.” Although it sounds like companies must hold fast to these requirements, there is some wiggle room. Companies that abide by a country’s censorship requirements are able to remain in compliance with the code of conduct as long as they disclose it. The main idea of the free speech pact was to include as many internet companies as possible in order to create a greater influence and have more credibility. The companies who decided to refrain from signing the code of conduct have done so for reasons such as fearing the auditing process and not seeing any financial benefit from doing so.

A spokesman for Facebook, Andrew Noyes, did not comment directly on the topic of the free speech pact but says that, “As Facebook grows, we’ll continue to expand our outreach and participation, but it’s important to remember that our global operations are still small, with offices in only a handful of countries.” Social media sites such as Facebook and Twitter have had a huge affect on freedom of speech around the world, but the issues of privacy and free speech are still not black and white, especially when it comes to crossing country borders.

In order to be more influential, more companies will have to be added to the free speech pact. The initiative is modeled on previous voluntary efforts aimed at self-regulation and this one is no different as it came to life at a time when Internet companies were seeking to polish their image and potentially ward off legislation. The idea of the pact is to help companies do the right thing instead of having to play catch up after they mess up.

The Internet provides a forum for various outputs of information and communication services. In America, we take advantage of all the services that free speech can offer us. Despite what people assume, the internet is regulated and American citizens are not completely oblivious to the dangers that then internet creates. By signing the code of conduct, countries will be able to learn how to work collectively and to allow them to integrate and communicate freely with those outside of their countries. The key for this code of conduct to protect privacy and free speech is to get technological companies outside of the U.S. to sign it. If Facebook and Twitter were to sign the pact, the benefits of free speech would be easier to spread because of the audiences that the social networking sites attract.

– Jordan E. Strohl

Calvert, Mary F. 6 March 2011. The New York Times.

http://www.nytimes.com/2011/03/07/technology/07rights.html

The Citizen Lab. 7 March 2011.

Sites Like Twitter Absent From Free Speech Pact

Kopytoff, Verne G. 15 March 2011. KOM105.

http://kom105.blogspot.com/2011/03/sites-like-twitter-absent-from-free.html

Image Source: http://www.feross.org/wp-content/uploads/2009/08/internet-censorship.png

Can Public Schools Punish Student Speech on the Web?

I am a Facebook user as many of you are. It is becoming normal to see someone posting derogatory comments about a friend or an ex on their Facebook status. And more and more cases are cropping up in the media regarding high school students and Facebook comments. Just how much is student speech protected? Can the school intervene, even if the action in question was posted off-campus?

In this article, an Oak Grove High School student, Megan Wisemore from Missouri, went to her Facebook status to complain about another student. She posted a comment that said, “You’re a skank and I hate you with a [expletive] passion.” Now, she claims this was only meant for her and her friends to see, however, the next day in school the two girls got into a altercation. Wisemore, who wrote the comment did not throw a punch, but both girls ended up being suspended. Wisemore’s mother said the school should not intervene and it was her daughters First Amendment right to say what she said.Student speech is protected somewhat under the case, TTinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) which stated, “It is established that public school students have First Amendment rights unless there is a real threat of violence or a substantial disruption to the educational environment.” In J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002), the court affirmed that school officials had the authority to discipline a student for an off-campus website containing derogatory and threatening when they amounted to an actual or substantial disruption of education.

Since the rise of social-networking this is getting harder to define. State courts seem to be all over the place on this issue.? For example, the Layshock v. Hermitage Sch. Dist., No. 06-116 (July 10, 2007) , a student made a fake MySpace page, citing the principal as a “big whore” who smoked a “big blunt.” The court said it was within the student’s free speech rights. While in another case in Pennsylvania, J.S. v. Blue Mt. Sch. Dist., 2010 U.S. App. LEXIS 7342 (3d Cir., Apr. 9, 2010) which also concerned a student who made a fake MySpace page of their principal, calling him a “tight ass” who liked “hitting on students and their parents.” J.S. v. Blue Mountain said the student’s speech was not protected and upheld her suspension from school.

The Oak Grove High School upheld the students suspension stating, “The Missouri Association of School Boards said schools may discipline off-campus behavior, if a connection is shown between the behavior and something happening in school.” The Missouri Association of School Boards also said, “the courts go back and forth on the issue.” Missouri lawmakers are currently considering a provision to specifically include cyberbullying in school safety legislation.

Because of the growing popularity of social-networking sites like Facebook and MySpace, the courts are going to be dealing with more and more cases like these everyday.

Article: https://firstamendmentcoalition.org/2010/03/student-first-amendment-rights-get-lost-in-schools-policing-of-off-campus-postings-on-social-media/