from the you're-not-helping dept
Another day, another story of copyright gone stupid. This time it involves Major League Baseball, which is no stranger to stupid copyright arguments. Going back fifteen years, we wrote about Major League Baseball claiming that other websites couldn’t even describe professional baseball games. There was a legal fight over this and MLB lost. A decade ago, MLB was shutting down fan pages for doing crazy things like “using a logo” of their favorite sports team. And, of course, like all major professional sports leagues, MLB has long engaged in copyfraud by claiming that “any account of this game, without the express written consent of Major League Baseball is prohibited”, which is just false. MLB has also made up ridiculous rules about how much reporters can post online at times, restricting things that they have no right to actually restrict.
The latest seems particularly stupid. Following on some sort of silly spat in which a guy named Kevin Clancy at Barstool Sports (the same brainiacs who wanted to sue the NFL for having sorta, not really, similar merchandise) got pissed off at a popular Twitter account called @PitchingNinja run by a guy named Rob Friedman, who would tweet out GIFs and videos of interesting pitches from MLB games. Apparently, the dudebro Clancy from Barstool sports pointed out that Friedman was violating the made up rules that MLB has on how much someone is allowed to share on social media, leading a ton of Clancy’s fans to “report” Friedman. Twitter shut down Friedman’s account — leading said dudebro, Clancy, to celebrate.
In a podcast interview with that very same Barstool Sports, who got his account shut down, Frideman notes that “there’s such a thing as fair use.” Indeed, his use of images and videos appears to be fairly obviously fair use. Since we can’t see his account while it’s suspended, we’ll go off of the Yahoo Sports description of the @PitchingNinja account:
Nearly every Rob Friedman tweet arrives offering four things: a baseball player?s name, a pitch he has thrown, an adjective to describe that pitch and a short video clip to illustrate it. Changeups are ?ridiculous,? and fastballs are ?absurd,? and sliders are ?nasty,? and sometimes they?re ?disgusting? and ?filthy? and ?obscene? and every other sort of visceral descriptor, too. Friedman is best known as @PitchingNinja, and his nearly 50,000 followers relish his ability to curate baseball?s deep cuts ? the sort of physics-bending pitches average fans may not notice but ones in which pitching nerds luxuriate.
So, going through a quick four factor test — Friedman is adding commentary, using a tiny amount of a game, not doing this for any commercial advantage and, if anything increasing the market for MLB’s product. It seems like a pretty clear cut fair use situation. MLB has told Yahoo that they expect to come to some sort of agreement to let Friedman back on Twitter:
League sources told Yahoo Sports that they expect to ?quickly and easily? reach a resolution with Friedman that would allow him to continue posting pitching GIFs. In a letter to the league official who filed the DMCA complaint, Friedman, a lawyer by trade, outlined his argument on how what he does benefits the league.
But, of course, it’s bullshit that they should even need to do this in the first place. The whole point of fair use is that you don’t need permission, and you don’t need to reach an agreement. And yet, according to Yahoo, MLB seems to think it needs to come to an agreement with Friedman over what is fair use:
MLB plans to contact Friedman in the coming days, if not sooner, at which point they are likely to agree on what constitutes fair use.
But, they don’t need to agree. The law says what fair use is, and MLB doesn’t get to change that to suit their own whims.
Friedman also told Yahoo the following:
?I also understand that MLB has every right to protect its product,? he wrote in the email, which he shared with Yahoo Sports. ?I?m most certainly not trying to deprive MLB of any value, instead I?m trying to create value by helping pitchers have a sense of community, learn, and appreciate the game. Rather than debate the legal matter, I am more than happy to give MLB all of my gifs for free or work out some other content deal that just allows me to use MLB content, as permitted, for fair use, to help pitchers, coaches, and fans understand the game. I would be happy to donate any content for free and execute a copyright license ensuring that MLB owns any gifs I create.?
That’s… weird. MLB already owns the copyright to the videos. Fair use is what lets Friedman make use of them without needing a license. So I’m not sure what he’s talking about licensing them back to MLB. That doesn’t really make much sense. But, you still see the underlying point that he’s making, which is that he’s building more interest in the game, and he’s not trying to claim any ownership or make any money from what he’s doing, it’s just for the love of sharing the game and educating people. Which, you know, is the kind of thing that fair use is explicitly designed to enable.
And, of course, no one should take Twitter off the hook here for suspending Friedman’s account. Twitter could have (and should have) rejected the DMCA notices and pointed out that the @PitchingNinja account was engaging in fair use. Instead, it shut down the account, and once again showed how copyright is regularly abused for censorship, rather than any legitimate purpose under the Copyright Act.