It’s been a tumultuous few weeks and I’m not going to lie: I’ve been completely overwhelmed. First off, wonderfully, with all of the support and encouragement I’ve received from all of you both publicly and privately. I’ve kept a lot of screenshots, and when I’ve felt a little down and discouraged (read: sobbing in the fetal position on the floor), I only have to look over the rogues’ gallery of awesomeness to get inspired to pull on my big girl pants again.
On the other hand, yes, it’s been overwhelming with many pieces moving behind the scenes, advice received and taken, and strategies launched. I owe you all a big update that fairly reflects what’s happened without unnecessarily risking the process underway.
To make this a manageable exercise, I’ve broken things down into chronological events (not including fetal position episodes) so you can quickly skim to get the gist and explore any of the topics more in-depth if you have the time.
The Things That Already Happened
Nov. 18: 3 Twitter DMCA takedowns received
Nov. 18: 3 counter-notifications (“CNs”) filed
Nov. 19: 81 Instagram and 59 Facebook objections received
Nov. 19: Email sent to Chris Neilson requesting the content be returned to all platforms
Nov. 27: First #FIHcopyfight post on all platforms
You know all this from the first post, but just as a reminder: I reached out privately to the person who was legally required to leave a name and email on the takedown notices specifically so I could request the material be returned to the respective platforms from which they’d been removed (that would be Chris Neilson). That’s one week without a sniff of response.
Also, I learned something fundamental about the FB/IG takedown notices: they weren’t filed under the DMCA but under FB’s more general and utterly opaque content complaint “procedure.” I attempted to file DMCA CNs (all 140 of them) for that content but they were rejected. My only recourse is to go back to the complainant and…ask them nicely to have the material returned. Which I’ve done, to no avail.
To read more about Facebook’s lack of appeal process, try this EFF article.
Nov. 28: That Phone Call From The FIH
About 12 hours after my post went up, I received a phone call from the FIH head office.* This is the first time since the summer that anyone from the FIH has made any contact with me, which was before the first season of takedowns were initiated during the women’s World Cup.
These were the three main messages imparted unto me:
- US copyright law, nor any other copyright law for that matter, applies because the FIH signs 1-year exclusivity agreements with broadcasters granting access to their native content;
- Hypothetically, if my protected use copyright claim were to succeed, I’d force the FIH into a position of being in breach of their broadcaster agreements, causing them to be sued and suffer significant financial losses, putting all future contracts in absolute peril. This would cause the collapse of the FIH economically, and thus no funds would trickle down to the member associations, causing them to collapse as well; and
- By taking the issue public, I was responsible for creating a terrible rift in the hockey family.
It’s ok, take as long as you need. Go for a walk, pour a glass of wine, pet your dog. Whatever you need to do to let that sink in.
Welcome back to Bafflementville. Population: Us.
The chat concluded by us both agreeing to retire to our corners and brainstorm possible compromise solutions.
(*Note: at no time was I asked to keep the contents of this conversation confidential. I have kept the identity of the caller private at this time to give the benefit of the doubt that the individual reached out in the spirit of problem-solving, even if the execution was, well, off the mark.)
Nov. 29 – Dec 4: Some Legal Steps
At this point, it was clear that I needed to take the first steps in finding legal help. I’d been canvassing my contacts for US attorneys specialising in online copyright law and drawing a blank, so I contacted the Electronic Freedom Foundation’s legal assistance program, and within two days had a list of four “Cooperating Attorneys” who were interested in my case.
I spent the next few days researching them all (twitter-stalking is definitely research), selected one as my first choice, and had a consultation call with them on Dec. 4. I’m not going to lie here either, I was a little nervous at this conversation too. What if I’d misread the situation, even a little bit?
I was utterly relieved to hear that Ruth Carter of the Venjuris group agreed with my analysis of the legal issues. From the applicability of US copyright law generally, that the DMCA expressly applies where invoked by the Twitter takedown notices, that my videos meet the 4-step test for fair use (see one supporter’s thread describing the test in plain language), to the flat-out injustice of the lack of due process with Facebook and Instagram, I’m getting it right.
We talked about strategies going forward, some of which I need to keep private for now as they’re yet to be implemented. At this point, Ruth said, there was no immediate need to retain them because I was doing just fine on my own. (Really? Gulp!)
Dec. 8: That #askFHU Video and Those 3 Other Twitter Videos
I had noticed that many prominent social media accounts were posting video clips from the tournament, some of them specifically asking about umpiring issues. At the same time, I was getting inquiries on particular topics, so around this day, I posted the following.
First, I produced an #askFHU video off the back of a question from The Reverse Stick which included two carefully-selected clips from the Hockey World League in Auckland from November 2017. This was explicitly so I could alleviate any concerns the FIH may have had regarding exclusivity agreements which would have expired before the video went up. I published the video natively on YouTube (to be included in a post on my website) and Facebook.
Second, I posted three video clips from the tournament on Twitter only. One video, in particular, showed the slide tackle and yellow card given in the CANvIND game on Dec. 8 which mirrored content posted by other social media accounts (like this one), but I also included a crucial replay from an angle that helped illustrate a complicated concept.
Suffice to say there was tons of constructive engagement on these posts. Learning was done.
Dec. 10: That Time The FIH Filed a YouTube Copyright Claim
YouTube is a reasonably creator-positive service provider who at least attempts to educate their user community on fair use principles and has a reasonable dispute process. If you dispute a claim, your content is returned–immediately–and the onus then returns to the claimant to press their claim within a defined period.
Two days after uploading the #askFHU video to YouTube, I received a copyright claim notice filed by the FIH. The notice indicated that it was filed from a manual search (not an algorithm that scans uploaded videos and compares against a library of registered copyrighted material), so my video was sought out. I immediately filed my dispute notice, and the block on the video was lifted. The FIH has until January 19, 2019, to take their next steps if they should disagree with my fair use claim.
Unfortunately, not everyone is YouTube.
Dec. 11: That Time In Social Media Jail
The next day, the same video was objected to by the FIH and removed from Facebook. Again, I had hoped that if I made sure to avoid any “exclusive content” broadcaster issues (to which fair use principles still apply regardless), that would be enough. Unexpectedly, this one video was the straw that broke the camel’s back, and Facebook announced they had suspended my account activity for 3 days.
The fun part was I didn’t just lose the ability to use my FHumpires business profile and page, but I lost the ability to conduct any activity at all. No post likes, sharing, or messages–either as FHumpires or myself as an individual. I couldn’t even wish anyone happy birthday. (To all the gentlemen from far-flung lands with their minimally-connected friend requests and marriage proposals, I apologise for all hearts broken after such a cruel delay.)
Simultaneously, I received 3 more takedown notices filed by the FIH with Twitter. Despite my CNs submitted on the first set (to which I was still waiting on a reply from Twitter), that triggered Twitter to suspend my account indefinitely. I immediately filed another 3 CNs to these notices, and also appealed the suspension. My research shows that it takes at least a week for Twitter to lift a suspension without an appeal being filed, but with a 3-week turnaround time processing filings by creators responding to complaints, I think a week will be the best I can hope for.
Note: as the suspension notices make clear, if the FIH were to retract their takedowns/objections and allow my content to be restored, the suspensions would be lifted.
Dec. 12: When Those First Twitter CNs Were Accepted
Finally, the next day brought a little good news. Twitter had accepted my first CNs from the Nov. 18 takedown notices and passed those along to the FIH. Under the DMCA, this starts a 10-day countdown during which period the FIH is required to file an action in federal court in Northern California seeking a court order to restrain me “from engaging in infringing activity relating to the material on Twitter.” As it happened in August, if they don’t, Twitter is obligated by law to put the videos back up.
Dec. 13: This Proposal Sent To The FIH
Part of the action plan Ruth Carter and I put together included putting a proposal in front of the FIH. I emailed my contact from the Nov. 19 phone call and outlined some of the information I’ve shared with you here (particularly the highlights from my conversation with Carter), with my idea to move us towards a solution.
What Happens Next?
Mostly, I wait. I wait to see if I get a response from the FIH to my proposal. Also, I’ll know by Dec. 23 (thereabouts, excepting for whether 10 days includes or excludes days of service, the wording of the legislation is ambiguous on this point) whether the FIH is serious about their legal position.
We all know that court is an expensive proposition and there’s always uncertainty involved with putting one’s case in front of a judge. However, if the FIH is going to stubbornly cling to this fundamentally incorrect position under the law that no element of fair use applies to their content and further that US copyright doesn’t apply to their content on American-owned social media platforms, we’ll get absolutely nowhere until they’re convinced otherwise.
If the FIH doesn’t respond with their suit, they’re in the position of having filed copyright claims which they’re not willing to stand behind, and the legitimacy of every other takedown notice (including those un-appealable objections on Facebook and Instagram) is fatally undermined. If they don’t restore my material but continue to abuse these copyright-holder-friendly policies, removing my videos just to have them replaced later when their claims are invalidated, I’m going to have to initiate my own legal action to not only prevent them from doing so but also compensate me for the damages they’re causing.
Am I willing to go that far?
Underneath all of the laws and the paperwork and the social media bickering, we need to show the FIH that we are not here to destroy the sport but are doing everything we can as dedicated volunteers, coaches, umpires, officials, players and passionate fans to promote a vibrant, engaged community.
We are the #hockeyfamily, and this is our game.