While the Games of the 32nd Olympiad have been all the talk over the last couple of weeks, it seems that the International Olympic Committee is actually seeking to suppress that talk. This is at least true in the social media space. Since the beginning of the games on July 23rd, many users on various social media sites, especially Twitter, have attempted to discuss the games through various highlights posted by users. This was followed up by a quick “strike” under the Digital Millennium Copyright Act, deleted posts, and even some suspensions or bans.
In short, the Digital Millennium Copyright Act ("DMCA") is a law which was passed during the Clinton Administration (read: It’s very outdated in internet years). The main purpose of the Act, in the Copyright realm, is to shield those who host content on the internet by creating a scheme where if the content hosters put in measures to make sure they limit potential infringement on their site, they they will be shielded from being liable from Copyright infringement under a “safe harbor” doctrine.
Under this oppressive striking regime, social media has seen popular users from twitch.tv and Twitter reportedly banned for watching, posting and/or commenting on highlights on their platforms .
However, the counterbalance to any Copyright claim are claims of fair use. Fair use allows a potential infringer to claim that they were using the work for (among other things) criticism and comment. This creates a friction where the content hosts have a hair-pin trigger to delete, suspend, and ban users who are posting content without giving a proper basis to explain why they believe they are in the right.
From a marketing standpoint, the over-policing of the DMCA is a perfect way to turn away potential new eyeballs from discussing your event. We currently live in the most digital age we ever have. Cable television has given away to streaming, and (for better or worse) articles have given away to twitter threads. The elimination of allowing small clips as a medium of displaying comment for the Olympics will eliminate the potential for people to watch an event they may not have tuned into because they saw something great on social media.
From a legal standpoint, the DMCA needs review, as it has truly been primed for an update in the new age of twitter and live streaming.This applies beyond the realm of sports highlights. People are getting removed from platforms that have become their livelihood (especially on twitch) for instances which could be determined as fair use. The lack of review and jurisprudence on the DMCA can lead to a slippery slope where “Sports Twitter” has a potential to implode because of the consistent action against highlights.
Obviously, the Olympics hold a lot of value in intellectual property, but there needs to be a balance struck where people can comment on, repost, and watch legally posted highlights without users sticking their necks out. It should be a gold medal for all of those involved, but the IOC and related parties are insistent on removing eyes from their events.
Maxwell Tajerstein, Esq. is a NY practicing attorney. He is a graduate of St. John's University School of Law and holds a degree in Sports Management from St. John's University. The overlap Sports and Intellectual Property Law is the main focus for his writing.
