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

from the live-case-studies dept

Tue, Mar 20th 2007 6:55am — Mike Masnick

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.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

23 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Republican Gun, 20 Mar 2007 @ 7:43am

NFL
The NFL is a dinosaur about to die. Let's talk about Battlefield 2142 instead.
[ link to this | view in thread ]
Matthew, 20 Mar 2007 @ 7:49am

Overactive lawyers
Anything they can do to justify their own existence seems like a good idea to them. How about you all put yourselves to use and get the DMCA declared unconstitutional or something?

While you're at it lets do away with the Patriot Act and daylight savings time. Seriously.
[ link to this | view in thread ]
Battlefield 2142 sucks, 20 Mar 2007 @ 7:51am

Re: NFL
Battlefield 2142 sucks. It's the same crap recycled again. Battlefield 1942 was good, Battlefield vietnam was kind of blah, battlefield 2 was ok, but it's starting to get old with 2142. It's the same gameplay over and over again.
[ link to this | view in thread ]
Vincent Clement, 20 Mar 2007 @ 8:06am

Ever notice how many sports monopoly or old media entities are unable to add value to their product. The MPAA and the RIAA honestly believe that DRM is a positive benefit for the end consumer.

What exactly did the NFL achieve by sending two DMCA takedown notices for a clip of a copyright notice that was used for educational purposes?
[ link to this | view in thread ]
Overcast, 20 Mar 2007 @ 8:15am

And to the above.... I guess it has a lot in common with the NFL!
[ link to this | view in thread ]
Michael Ayers, 20 Mar 2007 @ 8:29am

Well, just because she claims the clip is covered by fair use doesn't mean it necessarily is, so it's a bit of a stretch to write that the NFL is precluded from their second action merely because Ms. Seltzer informed them that it was an education-based fair use. The NFL can disagree that the use is a fair one.

However, that's just a statement of principle. Based on what I've read in this article, it does seem that Ms. Seltzer's use probably does fall within the protection of the fair use doctrine.
[ link to this | view in thread ]
DCX2, 20 Mar 2007 @ 8:38am

Re: Michael Ayers
According to this techdirt article, a counter-notification can only be challenged in court.

The NFL decided to skip challenging the counter-notification in court.

i.e. the NFL is precluded from their second action because of the law, not because she "merely" took the time to follow the DMCA and file a counter-notification.

I'm actually interested in this provision. Anyone know where it is?
[ link to this | view in thread ]
Jim (profile), 20 Mar 2007 @ 8:41am

It’s really about lawyers
Allowing Wendy to use the clip does not allow the NFL lawyer to claim any time to his client. Sending the take down notice let him add 8 hours to his billable time. That’s what this is about.
[ link to this | view in thread ]
CasperIV, 20 Mar 2007 @ 8:51am

RANT!
I hate the NBA, NFL, NHL, MPAA, RIAA, and any other abbreviated coalition of idiots. You have groups that "represent" people and are conducting acts on "behalf" of said people to protect a "product". Give me a break, athletes and musicians are getting a little too full of themselves. Who the hell cares if we have some freakishly tall people fumbling around a court? I see more exciting games going on in the local parks. Who cares if a musician is complaining that their private plane needs to be bigger. Here's an idea, WORK FOR A LIVING! Why is it that people think making a single song should make them independently wealthy?

Whatever happened to the entertainment in the entertainment industry? I know I don't find law suits all that interesting. I also know that I hate it when people exploit and blatantly violate laws because they are popular enough to do so without retribution. Why do celebrities get special treatment? If anything they should be held to a higher standard.

People always ask, of everyone in the world (living), who I would like to meet the most. The generic answer to this question is a celebrity or politician, but why would I want to meet any more idiots then I already have to? Since when did being a popular figure make you important? I sure as hell won't lose any sleep if Paris Hilton suddenly goes the way of Anna Nicole Smith (I actually might break into dance that I won't have to see her horse face anymore).

I just wish people could be smart enough to take a step back from their football game or soap opera and ask themselves why they are watching it.

/Rant
[ link to this | view in thread ]
Wolfger, 20 Mar 2007 @ 9:04am

Re: RANT!
"Who the hell cares if we have some freakishly tall people fumbling around a court?"

Apparently, a hell of a lot of people care. Where do you think the multi-million-dollar contracts get paid from? The team owner's good nature? Hah! They get paid from the millions of people who believe differently than you. I know it's a hard pill to swallow, but you need to get used to the fact that you aren't representative of people any more than the groups you are upset with.
[ link to this | view in thread ]
Kirby125, 20 Mar 2007 @ 9:26am

Copyright notice is copyrighted
I love it. The NFL is claiming that their copyright notice is copyrighted so therefore no one can reproduce their copyright notice without their permission! How will we know what their copyright notice says if we're not allowed to reproduce it?

Portions of the Digital Millennium Copyright Act are clearly anti-Constitutional, but no one has wanted to spend $10 million mounting a Supreme Court challenge to it.
[ link to this | view in thread ]
Casper, 20 Mar 2007 @ 10:02am

Re: Re: RANT!
That's exactly my point. Our society has serious problems when a person associates with a team to the point that they will trade their rights for a chance to full fill their insecurities vicariously. I actually happen to be a fan of many sports, but I do not support groups such as the NBA and NFL or the people who fund them.

I am all for peoples individualization, but not at the cost of society. There is nothing about group mentality that involves the individual. These peoples "devotion" to being a fan (not to a sport, that would imply participation) comes at the cost of future generations. Why is it acceptable for a person to spend a week preparing a super bowel party and not an hour teaching their children? Why can someone justify spending several hundred dollars on tickets when they admit that they don't like the players and really don't have the money to spend. It's an addiction that's supported by society, nothing more.

Peoples priorities are very a skew. You may take offense to my statements and say that "a hell of a lot of people care", but do you think I really want to be associated with them? I can step back and see that I am not representative of the majority, and that is the problem. People need to start stepping up to their responsibilities and stop complaining about a world in which they do not participate.

Those same people who are throwing millions of dollars to a freakishly tall person will still turn around and say that the schools do not have enough money or that there is too much crime in their city. Guess what, if you step back and look at what that money could do and what it is doing in the hands of the NBA, the choice should be clear.
[ link to this | view in thread ]
billy, 20 Mar 2007 @ 10:08am

Re: RANT!
I feel the same way about not caring.
But I know that there are a bunch of other people out there who have nothing better to do.
Its just a free time activity.
Mine is playing video games.
Some others enjoy them as much as I do, others don't.
Its just a different way to spend free time.

But I do seriously hate the "representative" groups (that include politicians, because they too, fail to represent)
[ link to this | view in thread ]
teknosapien, 20 Mar 2007 @ 10:12am

Re: Re: Re: RANT!
Hey, can I place my little piece of the world next to yours ?
[ link to this | view in thread ]
billy, 20 Mar 2007 @ 10:12am

Re: Re: Re: RANT!
I also agree that parents need to take one hell of an active role in their kids lives.
And I have a personal feeling that I do not give two shits what anyone does in life, no matter what,
Nobody should ever make more than $1million dollars a year, which is all inclusive of stock options, direct cash payment, retirement contributions, bonuses, etc.
If dip shit CEOs didn't need to make absurdly large amounts of money at the expense of the "little people", our society wouldn't suck so much either.

Maybe we impose a limit instead of 1million it could be 10X what the lowest paid employee of the company makes. Now THAT would be cool. Wouldn't be really punishing the success, it would just be better spread out.
[ link to this | view in thread ]
billy, 20 Mar 2007 @ 10:14am

oh, and i also agree with ..
People should look at how they waste a lot of money and stop whining about shit. Put their money where their mouth is, so to speak. Help be part of the solution instead of the problem.

We should get a group together that will actually fix things in the world.
[ link to this | view in thread ]
Anonymous Coward, 20 Mar 2007 @ 10:39am

Good Idea! We should prolly get some representatives to represent our group too.
[ link to this | view in thread ]
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.
[ link to this | view in thread ]
Casper, 20 Mar 2007 @ 12:36pm

Re: Re: Re: Re: RANT!
"Hey, can I place my little piece of the world next to yours ?"

As long as you promise to be quiet and not give me any door dings.
[ link to this | view in thread ]
Pedren, 20 Mar 2007 @ 1:04pm

#15 or billy
What you're talking about is called socialism and on the whole would push us closer to the dreaded communisism. *insert scary music* But I agree Excutives are rediculously overpayed in America in proportion to other countries.
[ link to this | view in thread ]
teknosapien, 20 Mar 2007 @ 1:16pm

Re: Copyright ownership
maybe you should take a peek here
http://arstechnica.com/news.ars/post/20070320-nfl-fumbles-dmca-takedown-battle-could-face-sanction s.html
[ link to this | view in thread ]
|333173|3|_||3, 21 Mar 2007 @ 4:54am

Re: Re; NFL
All FPS's come intot he same basic categoires, which I will list under the name of well known games of that type:
SoF II: close-quarters fighting, predominantely built-up maps, wich are generally small. Shotguns, machine guns, and hand grenades tend to be th emost popular weapons.
CoD: more open maps, small teams, use of cover and aimed shots more important than fast reactions. MOre specialisation of players is needed
Battlefield: larege temas, big maps, mixed open country, heavey cover, and built-up areas. Use of vehicles important, and more tactical thinking. Allt he requirements of Cod type games as well.

Personally I like the BF type games best, although SoF II is good for playing on doorstop computers, for quick games, and so on.
there are also games more like Firts-person versions of GTA, with the complex storyline in which shooting people is not the primary aim (as opposed to Halo's "frag anything which moves"), but rather a simple means to an end.
[ link to this | view in thread ]
Olly, 3 Mar 2011 @ 9:26pm

Re: Re: Re: RANT!
Because Super Bowel Parties are awesome.
[ link to this | view in thread ]