• by Wendy Davis , Staff Writer @wendyndavis, October 13, 2015

The general public might not have flocked to Twitter as quickly as the company hoped, but news organizations have long embraced the microblogging platform.

That could change, however, if Twitter continues to hastily take down accounts operated by media companies, as happened this week.

On Monday, Twitter suspended accounts operated by Gawker's Deadspin and Vox Media's SBNation after the NFL and other sports organizations complained about copyright infringement. Specifically, the accounts were accused of wrongly including short video clips and GIFs in their tweets.

Deadspin was restored within a few hours, but SBNationGif remains unavailable as of Tuesday afternoon.

The NFL takes the position that it is entitled to control video clips of football games. The league allows clips only on its own site, and sites operated by partners.

But regardless of the NFL's stated position, everyone has the right to make fair use of copyrighted material, including videos.

As recently as last year, U.S. District Court Judge Alvin Hellerstein in New York ruled that the clipping service TVEyes makes fair use of Fox News Network's material by indexing news clips and providing snippets of them to subscribers. Hellerstein ruled that TVEyes' service was "transformative," and therefore a fair use, because it serves a different function from the original broadcasts.

Whether something is fair use will depend on a variety of factors, including whether the material is used for purposes of criticism and commentary. Often, there's plenty of room for debate about that question.

In the case of Deadspin and SBNation, whether the tweets were fair use isn't yet clear -- at least not without more information -- says Internet law expert Venkat Balasubramani.

"There's probably a reasonable argument that it can be fair use," he says of the tweets, but adds that the analysis could hinge on the sites' reasons for posting the material.

"Are you just posting to convey what occurred, or as a humorous commentary on what occurred?" he asks. If the latter, the fair use argument is more obvious.

Given the legal uncertainties, companies like Twitter might think it's safer to err on the side of caution. Twitter, like other Web platforms, is immune from infringement liability for material uploaded by users, but only if that material is removed upon the content owner's request. Web platforms also can lose immunity if they don't have policies to deal with recidivists -- which could account for the suspension of Deadspin and SBNation.

But even if Twitter is protecting itself legally by taking down material first and asking questions later, the company still runs the risk that it will drive away the news organizations that rely on the service while also drawing other consumers to it.