DMCA Takedown For Professor Showing How Copyright Owners Exaggerate Their Rights

from the ah,-irony dept

We’ve covered way too many bogus DMCA takedown notices, but sometimes new ones stand out for being extra special. Wendy Seltzer, a law professor who used to work for the EFF and who founded the awesome Chilling Effects clearinghouse for providing an archive of various takedown notices, has apparently received her very own first DMCA takedown notice (found via Boing Boing). Seltzer posted a snippet from the Superbowl for her students to see. Not just any snippet, mind you, but the snippet where its announced: “This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL’s consent, is prohibited.” She posted it as an example of a copyright holder exaggerating its rights — as the NFL cannot ban all of the things they ban in that statement. Yes, this is getting more and more ironic. Take a moment to think this through for the layer upon layer of absurdity. A law professor puts up a short clip for educational purposes (fair use allows both short clips and educational uses of content) for the sake of showing how the NFL exaggerates its copyright control — and the NFL responds by then sending a DMCA takedown notice to better highlight how they not only exaggerate their claims, but then misuse the law to shut down fair use as well. Somehow, though, I doubt the NFL planned to help Seltzer demonstrate how the law is abused by trying to takedown her example of how they were abusing the law (got that?). Either way, it seems that the NFL is helping prove Seltzer’s point.


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Comments on “DMCA Takedown For Professor Showing How Copyright Owners Exaggerate Their Rights”

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18 Comments
Lewis Baumstark (profile) says:

Not so clear-cut

As the subject says, the takedown may very well be valid here. There are actually two separate fair use questions here:

  1. Using the clip for classroom purposes. Distribution is limited to the students in the course. This is unquestionably protected by fair use.
  2. Posting it to YouTube. The use here goes beyond academic study and morphs into wide-scale distribution. It is less clear that fair use would apply here.

With respect to number 2, she may have an argument that the posting was for purposes of criticism — in the context of this page — but from the standpoint of YouTube, who is hosting it without the critical context, it would very likely be infringement.

Perhaps if Wendy hosted the clip herself this would have been less of an issue.

Beefcake says:

Re: Not so clear-cut

But there are more than just classroom and criticism allowances for fair use. From section 107 of U.S. Copyright Law (sourced from http://www.copyright.gov/title17/92chap1.html#107):

Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

Posting to You-Tube could certainly fall under “comment”, possibly “news”, and possibly “teaching” (it’s unclear if the walls of a classroom define that ideal).

Also, the 4 criteria have been met, in that it was a non-commercial, a fraction of a percent of the overall protected work, and the effect did not damage the value of the protected work. Criteria 2 is a bit nebulous, but using the portion of the telecast which describes copyright would certainly seem to be of an allowable nature.

DMM says:

Not protectable material

The clip that Wendy posted is most likely not protectable at all because it is a functional, legal statement. Legal forms, like divorce forms, forms for incorporation of a business, are generally not copyrightable because they serve a primarily functional purpose. The same is true the the NFL’s on-air statement. So the bottom line is that the NFL appears to be abusing the DMCA just like many others.

rstr5105 says:

I said it before

I said it on Superfuckingbowl(copyright 2007 rstr5105) 🙂 sunday and I say it again, The N*L Is using the Streisand effect. They don’t care about good/bad pr, what they want (at least IMHO) Is for all of us to be here right now, talking about them.

We MIGHT not be buying their sh*t but we are thinking about them, thus, (and this is the marine in me talking) keeping us away from say the NHL. I know it sounds trite, but think about it, if you know people will still watch your games what does it hurt you to lose a fraction of your viewership so that way potential viewers of your competitors are not actually watching said same?

Basically, I think they are trying to ButtF*ck the other sports.

But that’s just me.

RSTR

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