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NFL fighting fans over online clips: Infringement or fair use?

We have discussed copyright law in a number of previous posts, as well as the idea that protecting copyrighted material is more important than ever in the age of the internet. That being said, there are many practical challenges that come with enforcing a copyright online - particularly if individuals are using small snippets of your larger copyrighted material.

Under the "fair use" doctrine, unauthorized use of copyrighted material is not considered infringement if it meets several criteria, including "the amount and substantiality of the portion used in relation to the copyrighted work as a whole," according to FindLaw.com. But those who claim fair use must also have a non-commercial reason to excerpt the copyrighted work such as providing commentary, reporting the news or giving criticism.

While each allegation of fair use must be decided on its own merits, such an approach could prove difficult for copyright holders like the National Football League. The NFL and other professional sports leagues are naturally very concerned about protecting broadcast rights to their games. But is the unauthorized posting of highlights, amazing plays and other short video segments considered a violation of copyright or fair use?

The answer to that question largely depends on who you ask. The NFL has been aggressive in its attempt to stop tens of thousands of fans from posting short snippets of games - some of which go up moments after they occurred live. It is fairly common for unauthorized posters to receive takedown notifications shortly after the material is uploaded.

But the NFL's tactics are seen by fans as heavy-handed, especially in comparison to the National Basketball Association, which takes a very different approach to unauthorized use of clips. The NBA's executive vice president of communications recently explained that "we have always believed that fans sharing highlights via social media is a great way to drive interest and excitement in the NBA. Our enforcement efforts are not aimed at fans, but rather are focused on the unauthorized live streaming of our games."

As we mentioned earlier, the difference between copyright infringement and fair use is not always clear. Instead, each copyright holder must decide what level of protection they want to maintain, and hope that a court agrees with them.

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