Journalism’s Digital Disruptions

Doug Bernard | Washington DC

It went bad at the very end, and started with the #7 car.

On the last lap of last Saturday’s NASCAR qualifying heat in Daytona Beach, Florida, the race cars were bunched so tightly together they appeared to be touching. Regan Smith in the #7 “Clean Coal Chevrolet” was  in the lead, but just barely. As the cars thundered into the final turn, Smith lost control. His Camaro nosed to the right, knocking Joey Logano in the #22 Ford Fusion into a spin. In the chain reaction that inevitably followed, many cars were damaged. But only Kyle Larson’s #7 car went airborne, slicing into the guard walls and shearing his Chevy into three pieces. (Larson was uninjured.)

Tragically, several of those pieces became flying projectiles, spraying those watching from the stands in a shower of metal, rubber and hot oil. 28 bystanders were injured, two of them seriously, as the race came to a shocking end. This is what it looked on the live NASCAR television feed:

The race was broadcast live on the ESPN sports TV network, but video of the actual accident quickly disappeared from the air (ESPN officials say that was out of concern and respect for those injured.) But in these days of “citizen journalism” when everyone has a video camera in their pocket, images of the wreck and its aftermath quickly began appearing online.

Is It News, Or Is It A Copyrighted Product?

One of the earliest, and most vivid, was a 1:16 camera-phone video shot and posted on YouTube by Tyler Anderson, a college sophomore from Jacksonville, Florida. It’s hard to watch, capturing both the pain and confusion of those in the stands immediately following the crash. As a video, it feels a little voyeuristic. As a document of a news event, it’s invaluable.

Literally within minutes, NASCAR officials petitioned YouTube to have Anderson’s video taken down under copyright protection provisions of Digital Millennium Copyright Act, or DMCA. YouTube complied, and the video was replaced by a notice that read: “This video contains content from NASCAR, which has blocked it on copyright grounds.”

But it was too late. Online viewers had already copied and re-posted the video, to say nothing of the dozens of other amateur postings that began sprouting online. Said sports journalist, NASCAR blogger and racing fan Jay Busbee in a tweet: “Well that didn’t take long … #NASCAR has pulled fan video of the wreck. It’s their right to do that, but also an unfortunate decision.”

Very quickly, it began to look to some like NASCAR was trying to censor news that might reflect poorly on the sport or its product.

Corporate officials soon posted a statement from senior VP Steve Phelps on the NASCAR website, now since buried, that read in part:

“This was never a copyright issue. This was never a censorship issue. The video of (Saturday’s) crash at Daytona International Speedway was blocked out of respect for those injured in the accident.”

YouTube and its corporate owner Google reversed its take-down, re-posting the video and issuing its own statement: “Our partners and users do not have the right to take down videos from YouTube unless they contain content which is copyright infringing, which is why we have reinstated the videos.”

Those injured continue their recovery, and the broken fence wall at Daytona was rebuilt within hours. But the public relations damage to NASCAR had been done, and the question remained: who owns the news?

You Can’t Copyright Facts

“Copyright has emerged in the past 15 years or so as one of the most effective instruments available to companies to silence speech,” says Internet freedom activist Parker Higgins. “It’s no surprise to see that once given this tool, companies use it for as much as they can get away with.”

Higgins works with the Electronic Frontier Foundation, or EFF, a non-profit online civil liberties organization. EFF, with other organizations, has been at the front of the battle against efforts to tighten copyright rules for material distributed online.

Among those efforts were two pieces legislation in Congress called SOPA and PIPA that were allowed to die on the table during the last session. Advocates such as EFF warn that laws like those, and the DMCA already signed into law, may have a chilling effect not only on free commerce and free speech on the web.

NASCAR is hardly unique in forcefully exerting copyright control and limiting citizens’ and journalists’ ability to cover events, especially among sports or entertainment firms. Perhaps the best known example are the Olympic Games. While viewed by hundreds of millions every cycle, the International Olympics Committee, or IOC, is famous for the very tight restrictions it applies to journalists’ ability to record and cover events, let alone attendees rights to post even the shakiest images or video online.  The American Society of News Editors, or ASNE, even has a list of common restrictions on journalists covering sporting events, but this list is by no means comprehensive.

Just as reporters often must agree to a large set of restrictions to be allowed to cover a “private” event such as the Olympics, individuals often give away their rights without even knowing it. In the case of Saturday’s race at Daytona, on the back of every NASCAR ticket was the following:

“NASCAR owns the rights to all images, sounds and data from this NASCAR event…The bearer of this ticket agrees not to take any action, or cause others to take any action, which would infringe upon NASCAR’s rights. Use of this ticket constitutes acceptance of these terms.”

Sounds fairly unambiguous. But is this really enough to bar anyone from posting anything that happened at the event, whether NASCAR specifically created it or not? Unsurprisingly, the answer is legally complicated.

“Fans give up their rights to exclusive photos and video by buying and using that ticket that says NASCAR owns it all,” writes Al Tompkins of the Poynter Institute, a resource for reporters. “Just as journalists who accept credentials give away the right to do whatever they want whenever they want with the images and video they capture at a race.”

Perhaps, but US copyright law has always allowed some flexibility through what’s called “fair use” – essentially the right of a news organization to make use of limited elements of a copyrighted product for news or commentary purposes, as long as that use doesn’t hinder the right’s holder. Fair use, however, is itself a tangled legal discussion, so we’ll save that for another time.

What’s clear is that at the core of US copyright law – some of the oldest laws in the US legal code – is the tenet that you can copyright a product but not an idea. “Copyright protects the particular way authors have expressed themselves,” says the US Copyright Office. “It does not extend to any ideas, systems, or factual information conveyed in a work.”

So was it a product, or a fact, that Tyler Anderson captured on his mobile phone? Probably a little of both.

The Battles To Come

Governments have long tried to limit, control or even ban all sorts of images, commentary, news or other information with varying success. At times the Internet has helped circumvent that censorship. It’s unlikely, for example, that any TV outlet within Iran broadcast tape of the 2009 death of Iranian activist Neda Agha-Solton at the hands of government security forces, but very probable many in the nation saw the footage online or via mobile phone.

However, as we’ve continually noted, the web is not just a tool in spreading information, but can be used to slow or stop it. The EFF’s Peter Higgins notes that in the early days of the Internet, information was notoriously difficult to control. These days, with expanded copyright protections, he’s not so sure:

“Copyright isn’t supposed to be in place for companies, but the public. So the right question isn’t how to configure copyright to maximize profit, but rather to best serve the public interest. NASCAR may well argue that having absolute control over what its fans produce generates more profits for itself, but it’s pretty clear that’s not what the law is supposed to do.”

Meaning: censorship can come in many forms. Sometimes it’s at the hands of an autocratic regime. At other times, the legal team of a wealthy corporation.

We made several requests to NASCAR for comment on this story, and were repeatedly directed to their website and Mr. Phelps’ statement.