Copyfight Episode 1: #FIHcopyfight

After years of posting news, resources, and appointments, the one piece of feedback I kept hearing from umpires around the world were really looking for was the ability to view, analyse and discuss actual match footage. I heard you, friends. So over the past year, I’ve been posting edited clips on social media from various high-level hockey tournaments with my commentary and guided constructive engagement on the clips’ contents.

I didn’t enter into the activity lightly. As a trained but no longer practising lawyer, I am well aware of copyright issues and did a significant amount of research before I started this because I believe that not only is this use of material important from a community perspective for the growth of our sport, but also entirely legal.

For several months I didn’t hear a peep. I posted with official tournament hashtags, sometimes tagging the appropriate continental federation, tournament body (like the EHL) or the FIH itself in the videos – I was not hiding. Then a couple of weeks before the women’s World Cup this summer, I was contacted by the then-Officials Manager of the FIH who asked where I was getting the footage from, had I paid off a member of the broadcast production team to access the feed, or were umpires from the tournaments sending me copies of their DVDs. Well, uh, no, because it’s nearly 2019. I also wanted to make sure that if the FIH had any concerns over copyright they knew that I was open to talking it out because, after all, it’s not like I’m a stranger to them.

I’ve given a lot of my life to serve the game. I was an FIH umpire for 14 years. I’m currently a candidate to be an FIH umpire manager. They know my birthdate, my home address, my passport and my phone number. So I said, please, I’m open to conversation, let’s have a chat. And nothing.

Then, several days into the women’s World Cup in London, I started receiving takedown notices from Facebook and Instagram, who are the same company, from various broadcast rights holders. On those platforms, I was able to fill out a web form disputing the takedown and setting out my argument as to why my use of the material was legal. In each case, and there were about 8 of them on those platforms, the broadcasters agreed to drop the takedown and my videos went back up.

I also received an email from Twitter that the FIH had filed a takedown notice for a single one of my tweets. For material to be taken down on Twitter as opposed to Facebook and Instagram, the rights holder has to file pursuant to U.S. legislation called the Digital Millennium Copyright Act. The reason this law applies is because Twitter (and Facebook and Instagram) legally operate in the judicial district of Northern California so it requires users under its terms of service to be bound by its laws.

What you need to know at this point is that filing a takedown notice under the DMCA is serious stuff. You're swearing in a legal document that you in good faith not only believe that your material is copyrighted and that right is being infringed, but that you’ve considered whether it’s a protected use of material and therefore legal. One of the protected uses of copyrighted material is fair use, and I’ll explore fair use and the DMCA in more detail in an upcoming post so if your eyes are already glazing over, come back!

Once you’ve received a takedown, you can then respond under the DMCA by filing a counter-notification with the service provider. It’s the same serious deal, you’re swearing under the penalty of perjury that you believe that your use of the material in question is protected. Once the counter-notification is filed, the rights holder then has 14 days in which to sue you in Northern California for breach of copyright, or else the service provider has to put the material back up.

So I filed my counter-notification, which took four tries before Twitter accepted it. Once I jumped over that hurdle, the 14-day clock started, and in mid-August, it ran out without the FIH suing, and the tweet went back up.

Now, I wasn’t mad at any of this. I understand full well that as the FIH is trying to commercialize their matches by selling broadcast rights and generating some much-needed revenue in the game, and I think everyone in our sport desperately wants to see the FIH and other hockey bodies being successful here. So you’d expect that the FIH and contracted broadcasters would test the waters out to see mostly how serious someone like me is in using match material, and I would hope, figuring out where the bright line for copyright enforcement is drawn according to the law. They tested it, I responded with my legal position, and I thought, seems like we’ve sorted this out.

During the women’s Champions Trophy that wrapped up a couple of days ago in Changzhou, China, I was posting clips as usual. Sunday, I received three Twitter takedown notices issued by the FIH, seeing a new name attached to them. I immediately filed my counter-notifications and as of right now, I’m still waiting for a response from Twitter (it tends to take several days). Then came Black Monday.

My inbox had 140 shiny new takedown notices, 59 from Facebook and 81 from Instagram, all filed again by the FIH. I attempted to respond as I did in July but found there was no appeal form provided for these notices, not in any of the 140 emails or online as I reviewed the posts. I dug around and found a DMCA response form, and filled it out for the four takedown reports that covered the 140 posts, and the response from Facebook was that these weren’t filed under the DMCA so my only remedy is to go back to the rights holder and ask them to retract the takedown.

Of course, I’ve done that. I emailed Chris Neilson, the Media Rights Manager who filed the 143 takedowns and outlined my position. You can read the email below:

Mr. Neilson,

I have received the takedown notices you filed on behalf of the International Hockey Federation on three social media properties since November 18, 2018: Facebook (59), Instagram (81), and Twitter (3).

Please be advised that in each of the 143 instances you have filed a complaint and with every other posting to which you could claim copyright over its content, I assert the following:

My use of the material is legally protected because it falls within the “fair use” provisions of US copyright law, under which Facebook, Instagram and Twitter operate. FHumpires provides umpiring education worldwide. These video clips illustrate an umpiring decision to which I provide commentary and facilitate further discussion. The clips are as brief as possible, usually under 60 seconds of edited content, and represent a minute portion of the copyrighted work. By repurposing this content and adding educational value, FHumpires helps to generate interest and engagement in the content, driving more viewers to the original broadcast source, and does not replicate or divert the entertainment value of the original broadcast.

I have filed counter-notifications to each of the 143 complaints, for which you will receive notifications from the various service providers in due course.

Please also consider this as a request to the FIH to immediately notify Twitter, Facebook and Instagram that you consent to the use of this material. I invite you to more fully investigate the principles behind the fair use doctrine when you consider this request. If you decide to refuse it, I will need to explain to several thousand followers that the FIH are preventing me from sharing this content with them despite my use clearly falling within “fair use” provisions while I wait for the outcome of my filings.

Further, I remind you as provided in section 512(f) of the DMCA, if you have filed a false DMCA Takedown notice (for example one that does not consider the applicability of an exception such fair use), you risk significant legal liability, including criminal penalties. After this set of complaints has been processed and the material restored, should you continue to file spurious complaints under the DMCA, I will pursue all legal remedies available to me under that legislation.

Back in July, prior to the women’s World Cup being broadcast, I had a conversation with then-Officials Manager Craig Gribble about the video clips I post. Even though Mr. Gribble was insisting there weren't any legal problems brewing, I attempted to open the channels of communication. I invited Mr. Gribble to pass along to anyone on the legal team my willingness to talk about anything of concern. Rather than take a cooperative approach and taking up my offer, I received a number of takedown notices once the tournament began–all of which were successfully appealed on fair use grounds. Since that time, I’d had no further complaints filed, and hoped that a manner of precedent had been established.

While I understand the need for the FIH to protect the interests of the companies who have entered into broadcast agreements with them and preserve the commercial value of the broadcast product, this is not the right approach to take with your global hockey family members. I am particularly dismayed when I’ve spent 15 years of service as an FIH umpire and am preparing to continue as an FIH umpire manager that my passion and desire to support my friends, colleagues and fellow third team members is treated as a threat to the FIH rather than the asset it is.

I repeat my willingness to engage in a dialogue. However, my legal position is also clear and I will defend it with the same rigour and passion that I approach everything to do with umpiring. I look forward to your prompt response.

Keely Dunn

It’s November 27, 7 days later, and I’ve heard nothing.

So when you go to the FHumpires Instagram feed or Facebook page and scroll back, you’ll notice that things look damn skinny. And here’s the thing. While all of that content is gone, it’s harder for people to find me. Search algorithms are fuelled by content and interaction that followers have with that content, and a whole swath of it is gone. If someone’s interested in hockey and umpiring, I’m far less likely to show up in a recommended feed, or if someone does an outright search for something like “aerial ball video clip”, posts that will really help them just don’t exist now.

If that’s not cool, let’s talk about what really grinds my gears: all of the great discussions that have happened on the various platforms are also GONE. Everything that you contributed to the community, which was some really valuable input from which I and everyone else learned a ton: GONE. You can’t go back and revisit it when you have a question, or if you see something similar in one of your games and you want to review all the points that were tossed back and forth. That makes me furious.

I have always pushed the live stream and broadcast sources for FIH matches. I post the appointments from every senior and U21 tournament and whenever I can, I put the links up and encourage everyone to go watch the matches, even when there’s often an incredibly awful system of geo-blocking that stops a lot of people worldwide from it.

Aside from being fans and enjoying watching good hockey, everyone knows the second-best way to elevate your understanding of a sport is to watch it, whether you’re an umpire, a coach or a player. Watching entire matches is great when you have no life (points at self), but clips allow umpires, coaches and players to focus their attention on specific issues and really maximizes the learning opportunities. Video work is standard. It's how we learn. How we engage. How we invest.

Taking away these learning opportunities under copyright enforcement is so counter-productive to growing the sport it defies all logic. But putting the moral argument aside, what the FIH is doing here is illegal. Copyright law is not and was never intended to stop every possible person from ever using creative material. The fair use exemption isn’t just a defence, it’s a positive right in and of itself and the law protects it. These FHumpires clips are protected and I will fight to get them back up in the public domain where they belong.

I’m actively seeking out legal counsel in California to advise me on the next steps to take, particularly in getting Facebook and Instagram to put my posts back up and stopping the FIH from filing further spurious claims against me. This could go a lot of ways and many of those may be expensive. I’m not asking for help yet, first because it’s really hard to do so, but also because I just don’t know what is going to happen. If it comes down to it, I’ll come to the hockey family with my hat out, but I hope I can fight this on my own.

If you’d like to learn more about the #FIHcopyfight and get updates on the progress I’m making, please go to fhumpires.com/copyfight and sign up for the email newsletter. If you’re concerned about what’s happening and how this will affect the hockey community, you can email Media Rights Manager Chris Neilson and let him know that you believe the FIH should follow copyright law and stop this indiscriminate slash and burn harassment campaign. His address is chris.neilson@fih.ch and cc info@fih.ch while you’re at it, just in case he’s as interested in having a conversation with you as he is me.

I’m currently evaluating what the plan is for the men’s World Cup. Obviously, it’s a huge event with some of the best umpires in the world and great production values and that means prime learning time. I will find a way!

Thanks for watching or reading, and for those of you who have already been in touch, I want to say thank you so much for your support. As angry and determined as I am, I'm still really scared at the prospect of risking everything. If you have any comments or questions, do your thing: comment below or DM me privately, I’d really love to hear from you.

Thanks #thirdteam, stay tuned.

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