Last Sunday, Jeff Sullivan saw a baseball moment that he loved; wanting others to share in the enjoyment of it, he posted a gif. In today's digital age, it's almost first nature. When we see something funny, exciting, poignant, or all of the above, we want others to be able to experience those same feelings. However MLB apparently doesn't feel the same way. Seeing the gif, MLBAM (MLB Advanced Media) sent Sullivan a DMCA (Digital Millennium Copyright Act) takedown notice, instead of appreciating the free promotion. This isn't the first time that someone in baseball media has felt the buzzsaw that is MLBAM, the guardian of MLB's content rights, and it undoubtedly won't be the last.
Jose Rivera of Lookout Landing had his own run-in with MLBAM earlier this year, which prompted Matt Ellis to pen an open letter asking them to change their stance on letting fans disseminate video clips through various social media platforms. Yet, despite similar requests from multiple sources, MLB hasn't softened their viewpoint on the matter. To the contrary, they've hardened their viewpoint, as more writers and baseball fans continue to be trampled by a media goliath who is fighting the future.
MLB is missing out on a tremendous opportunity to let fans market baseball across the globe for no cost, and doing so at significant peril. But before looking more closely at their monumental marketing mistake, it's important to understand what the DMCA is, and why MLB is using it so oppressively.
What is a DMCA takedown notice?
The DMCA is a U.S. copyright law that "addresses the rights and obligations of owners of copyrighted material who believe their rights under U.S. copyright law have been infringed, particularly but not limited to, on the internet."
There are various reasons why anyone can be targeted with a DMCA takedown notice, but for the purpose of this article, we'll just focus on how it relates to baseball and social media platforms. Fortunately (or unfortunately), more than a few SB Nation writers have recently been the recipient of these notices and have provided exactly what a DMCA takedown notice looks like in this context.
Only July 23rd, Alex Rodriguez slid into home plate in an unconventional manner, which our own Nick Stellini decided to share with the world. In his own words, "it [the gif] quickly and unexpectedly went viral, including getting tweeted by the AOL Sports Twitter account, while giving me credit for it."
Stellini's tweet also made its way onto Business Insider, NESN, and many other sites. However, that popularity attracted the attention of MLBAM, and this DMCA takedown notice found its way into his email account. As a "first-time offender", there wasn't much that Stellini needed to do, especially considering that he had no intentions of challenging the takedown notice. In contrast, Rivera's account was suspended, as he describes.
"So, after my original account, @notjoserivera, received a few DMCA complaints, Twitter sent me an email saying my account [was] suspended. The email went on to say if I wanted it restored, I just needed to reply with something along the lines of 'I understand Twitter's policy regarding copyright content.' After I sent that reply, they restored my account within a few minutes. I made a conscious decision that was going to be the end of me creating MLB GIFs and posting them to my Twitter account.
[Even so] that account was eventually permanently suspended when I uploaded a clip to streamable (3rd party site). Twitter said because I provided a link to copyright protected content, they [would] be permanently suspending my account."
Clearly both of these instances did represent violations of the DMCA, and MLBAM had the legal right to have them removed; however just because they can issue takedown notices doesn't mean that they should.
Each time MLB decides that someone is unfairly and illegally using their content and chooses to punish them for it, they're intentionally making it more difficult for fans to enjoy and interact with their game. At the center of all this, the question looms -- what marketer wants to stop its customers from enjoying and consuming its products? What could MLB's motivation possibly be for this kind of behavior?
Why MLB wants and continues to issue DMCA's
To address this question, I was fortunate enough to speak with Larry Silverman, formerly Senior Vice President and General Counsel for the Pittsburgh Pirates and currently Of Counsel with Dickie, McCamey & Chilcote and an adjunct professor of sports law at the University of Pittsburgh.
"Q: Why does MLBAM issue DMCA takedown notices to people who disseminate video clips through Twitter, Vine, and other social media platforms?
A: First of all, MLB would like to drive traffic to their own website. I think that in their mind, it's their copyrighted material. If they let anyone use it beyond what we consider fair use, just for a second or two, buried in the background, that would constitute a copyright violation and not be fair use. Assuming that's the case, MLB, they own they rights and if they let everyone have it for free without paying them a fee of any kind, then they're diluting the value of those rights. They want to drive you to their site.
Q: What, if any, would be the consequences if MLBAM didn't actively fight to have those videos removed?
A: Well again, if you're asking me from a legal standpoint, they are not obligated to send out a DMCA notice every time somebody posts copyrighted material. There could be an argument at some point that they waived their claim, but I don't think that's the case frankly. So I don't think there are any legal ramifications if they don't send a takedown notice. It's not as if you lose your copyright. The whole idea of having copyrighted material is that you own it, and if others use it, they have to license it from you and pay a small fee. But you don't lose your right if you don't send down a takedown notice.
Q: The NBA seemingly doesn't go after accounts that post highlight clips of games on the internet. Based on your answer from the previous question, I would assume that your opinion for the different approaches would be that if the NBA did see someone using their copyrighted material in a defamatory or slanderous way, that they would approach them to stop that, but in general they're ok letting fans use the material to promote the game.
A: Their philosophy is presumably what you stated from the beginning, which is from a marketing standpoint. That they allow, assuming it's an appropriate use of the video, to be used because it enhances their brand, which really is a matter of philosophy."
Silverman is seemingly of the opinion that MLB issues the DMCA takedown notices because they want to control their brand and drive viewers to their site. Looking at a gif, or video on an unaffiliated account, or website, deprives MLB.com of valuable clicks, and ultimately some marginal ad revenue from their various sponsors.
By focusing on revenue of such little consequence, MLB completely misses the big picture. They're currently engaged in a fight for their future, and by waging war on those trying to promote baseball on social media, they're sabotaging their greatest opportunity to reach their desired fan base.
According to ESPN, the median viewer age for the NBA in 2015 is 37 years old; 10 years younger than the NFL, and a whopping 16 years younger than MLB. Video clips like gifs that are widely available and freely passed through social media generate new and broad interest in the sport, particularly among the younger demographics that MLB so desperately covets.
This is something that the NBA clearly understands, as noted by Roberto A. Ferdman of the Washington Post.
"But it isn't merely the National Basketball Association's ability to attract the youth to television sets around the country that bodes well for the future of the sport. Basketball has also proved to be popular on newer platforms like Vine and Snapchat, where short clips and highlights are shared, in a way other sports have not. A cursory search on Vine shows that just under 100,000 videos have been posted with the tag NBA, while fewer than 50,000 have been posted with the tag NFL, and fewer than 15,000 with the tag MLB."
The NBA's marketing strategy sees change embodied by social media, viewed as an ally and an asset. By allowing fans to do what they please with highlight clips, they've essentially turned every fan with a social media account into an active member of one of the largest marketing groups that any sports organization has.
MLB has had a history of being at the forefront of change, but in this case they're lagging behind. In fact, MLBAM was initially one of the pioneers, if not the pioneer of the digital revolution in the sporting world. While others were fearful of how streaming would cripple TV deals, MLB jumped at the chance to make their product easily accessible and became such a goliath in the industry that the NHL, and more notably HBO, turned to them for help. Yet now, MLBAM has grown frightened of change and as a result is failing to grasp a digital marketing tool that is vital to its future.
Why MLB should let fans take control of videos on social media platforms
As of January 2015, 19 percent of the entire U.S. adult population was on Twitter, which represents 46.6 million people who can be reached by the touch of a button, which brings us back to the original jumping off point of this article.
When Sullivan tweeted a gif of Adrian Beltre and Felix Hernandez, he immediately provided a way for fans across the globe to connect with a baseball moment. Not only were his followers able to access a game that they most likely weren't watching at the time, but they too were able to send it out to their followers.
Perhaps the most beautiful and essential part of Twitter is that each follower is a potential link to an entirely new set of people. While Sullivan's twitter account has 22.4 thousand followers, his tweet had 38,134 total impressions, a number that undoubtedly would have grown had MLBAM not removed the gif from his tweet.
Stellini's tweet about A-Rod's slide was sent to his 650 followers, but because of the beauty of Twitter, he had over 61 thousand total impressions, 314 retweets, and 263 favorites. Overall, more than 10,000 people directly engaged with his tweet; which underscores the power of social media.
While MLB does have a Twitter account devoted to just gifs, they do not have the capacity to react as quickly as the average user can. When Sullivan posted the gif of Hernandez and Beltre, he beat MLB GIFs by a full 34 minutes. It's also impossible for MLB GIFs to tweet out every video that fans want to see, as they simply cannot know what will be interesting to everyone. And of course the very idea of trying to control a social media platform belies the point behind its creation.
MLBAM does not track down every tweet or every account that posts a gif of something baseball related. That's more than likely because they simply don't have the resources to do so. Yet, they do step in when something becomes incredibly popular. At this point, taking down something popular, something that is spreading enjoyment of the game, is not in MLB's best interests.
Rob Manfred has already gone on record as being in favor of lifting blackouts in baseball, and per a recent announcement, it appears that MLB and Fox have reached an agreement to end them in some capacity for 2016. That is a small step in the right direction; however, there is much more that needs to be done. Manfred should lead boldly in his early tenure as commissioner and show baseball that it must stop fighting the future. MLB must stop punishing fans and journalists for wanting to share our enjoyment of baseball and allow us to market the game we love.
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Matt Goldman is a Featured Writer with Beyond the Box Score and a Contributing Editor at MLB Daily Dish. You can follow him on Twitter at @TheOriginalBull.