NFL Continues To Help Professor Demonstrate How Copyright Owners Abuse The DMCA

from the live-case-studies dept

Last month, we had the story of how law professor, and creator of the Chilling Effects website, Wendy Seltzer, had received her very first DMCA takedown notice for posting a short clip on YouTube of the "copyright message" shown during the Super Bowl. Seltzer was using the clip to demonstrate to her students that copyright owners were claiming additional rights beyond copyright -- as the NFL's copyright statement claims rights well beyond what copyright actually grants it. As if to help prove Seltzer's point, the NFL then sent a DMCA takedown notice to YouTube, forcing them to pull the clip -- even though it was pretty clearly covered under fair use. Seltzer then followed up and filed the counter-notification, as per the DMCA, and YouTube put the clip back up. That counter-notification is sent to the NFL as well -- and makes it clear to them that Seltzer was claiming educational fair use as an exemption from the DMCA. The DMCA is also clear that if the NFL wants to challenge her on this claim, they need to go to court. Instead... they simply filed another DMCA takedown notice and got the video pulled again. As Seltzer points out, this clearly violates the DMCA, which states that the copyright holder filing a takedown cannot claim the material is infringing when they know it is not. Since they were clearly informed that the poster of the video was claiming fair use, the NFL appears to be in violation of the DMCA. This is the same sort of thing that got Barney the dinosaur in serious trouble with Seltzer's former employer, the EFF. Perhaps someone should remind the NFL how that case turned out. I never thought I'd be discussing what the NFL can learn from Barney the dinosaur, but perhaps the big annoying stuffed purple dinosaur actually does have some educational value after all.
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  1. identicon
    Kevin Smith, 20 Mar 2007 @ 10:54am

    Copyright ownership

    I think a couple of points are missed here. I currently work in the acquisition of rights for intellectual property - and while Ms. Seltzer might think she was within her rights claiming fair use, there's a very fine line that the courts will use to determine this.

    Unfortunately, instead of just taping the disclaimer and showing it in her classroom rather than post it on a site that is commercially owned, and has a business model upon which the theory of making a profit is based, she has put herself into a position where the lawyers for the NFL probably have a fair case to have the disclaimer pulled.

    As for Kirby talking about the copyright notice being copyrighted - well it probably is. Most of those disclaimers claim copyright on the broadcast as a whole, which would in turn include the disclaimer which is part of the broadcast. The typical language, as I recall, reads "Any rebroadcast of this game, in whole or in part, is strictly prohibited without the express written consent," of whatever sports league is broadcasting.

    I'm not saying that she isn't within her rights in regards to fair use - what I'm saying is that the forum she chose might conflict with the legal definition, and as such, youtube had to take it down or face litigation from the NFL. As long as youtube is making commercial dollars and their vehicle in driving traffic to the site is the video content, it is unlikely that any court will grant youtube any sort of fair usage.

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