NASCAR Abuses DMCA To Try To Delete Fan Videos Of Daytona Crash
from the that's-now-how-copyright-works dept
Joseph M. Durnal was the first of a whole bunch of you to send in a version of this story showing how NASCAR abused copyright to take down some videos. You may have heard that there was a big NASCAR crash at Daytona that sent debris flying into the stands. Well, a video from those same stands, which shows a wheel lying in the seats next to someone injured, was deleted from YouTube via NASCAR claiming copyright on it and issuing a takedown. Obviously, that's a bogus claim, because the copyright would belong to the guy who filmed it.As the press started calling, NASCAR gave what might seem like a perfectly reasonable response:
The fan video of the wreck on the final lap of today’s NASCAR Nationwide Series race was blocked on YouTube out of respect for those injured in today’s accident. Information on the status of those fans was unclear and the decision was made to err on the side of caution with this very serious incident.—Steve Phelps, NASCAR Senior Vice President and Chief Marketing OfficerSounds great, except it's totally bogus. NASCAR may well be concerned about those injured by the crash, but that does not give them the right to automatically remove someone else's video, nor does it allow them to abuse the DMCA takedown process for that purpose. The DMCA only applies to copyright.
Of course, once again, we're seeing how when our laws make it easy to censor via copyright claims, many people seek to do exactly that. Thankfully, all of the attention on the takedown has resulted in YouTube doing what appears to have been an expedited review, and have put the video back:
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Filed Under: censorship, crash, daytona, dmca, nascar, takedowns
Companies: google, nascar, youtube
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Actually I do believe their intentions are true and honest and censorship was not in their minds. Much like a few "for the children" initiatives are perfectly honest. However this makes it quite clear that once the tools for censorship are in place they will be used. And that there will be wrongful "censoring" (or collateral damage).
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Response to: Ninja on Feb 25th, 2013 @ 5:29am
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Corporations don't care about people. If they do, don't you think they would invest more in better crowd safety to prevent situations like this? Instead we're stuck focusing on the censorship, mostly because it's blatant.
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While I don't think using DMCA like they did was in any way justified, to say they don't try to make the place as safe as possible is not true. They provide as much safety as possible while attempting to maintain an enjoyable experience for the fans.
Some people like to sit down front and get rubber flung in their face. Others like the top seats for a better view of the entire track. Until this crash, they believed they had a system that would prevent this very thing. They have modified the cars so they almost never flip like they used to just a scant 10 years ago, They added a SAFER barrier to protect the drivers, Hell, the car that was shorn in half, and the driver walked away!
If you want to stay safe from any possibility of danger, stop playing sports, stop driving or riding in a car, never fly, stay away from bars and other places where a crowd gathers, basically go hide in a cucoon, under a rock, and hope no other soul finds you. All of these are more dangerous than going to a race.
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cen·sor·ship
/ˈsensərˌSHip/
Noun
The practice of officially examining books, movies, etc., and suppressing unacceptable parts.
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Once we get this ruled against, we can start making our way down the slipperiness.
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Ninja assassins.
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> what will the poor politicians do when they want to remove
> anything that is damaging to their image from the Net.
They'll do it the old fashioned way. Which is usually far more entertaining.
Quietly threaten to sue. Claim the threatening letter is copyrighted and cannot be published. Claim national security is at stake. Throw the word terrorist around. Make claims of representing law enforcement. Make bold statements that are contrary to the way the law and the legal system work. Show you proof, in writing, that said politician has hired investigators to hack into your computers and have obtained personal information.
See? Isn't that a lot better than a bogus DMCA takedown? Therefore, why do we need the DMCA?
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Fine Print
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Re: Fine Print
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Re: Re: Fine Print
[Holder irrevocably grants to Daytona International Speedway and its assigns, licensees, affiliates and successors the right to use Holder's image, likeness, voice, actions and/or statements in all forms and media including advertising, trade, or any commercial purpose throughout the world and in perpetuity. Holder hereby waives any and all claims that holder may have for libel, defamation, invasion of privacy or right of publicity, infringement of copyright or violation of any other right arising out of or relating to any utilization of Holder's image as described herein.]
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Re: Fine Print
That's not a legal transfer of the copyright.
From the copyright office itself:
"Any or all of the copyright owner's exclusive rights or any
subdivision of those rights may be transferred, but the transfer of exclusive rights is not valid unless that transfer is in writing and signed by the owner of the rights conveyed or such owner's duly authorized agent"
Unless the ticket involve them explicitly signing something saying that they were assigning the copyrights to NASCAR, which seems unlikely...
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Re: Re: Fine Print
If NASCAR could prove you knew the terms when purchasing a ticket, that signature wouldn't be the same as accepting the terms because it's only the terms explicit in the reciept no?
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Re: Re: Fine Print
try to take your phone/whatever and video an NFL game, and see how far you get with that...
*and* i am thinking the NFL won't give a shit whether it was for your own personal use, or if it was 'broadcast' in some manner (which i'm guessing is almost ANY manner of recording), they will *still* come down on you like a ton of bricks...
(which -for the record- yes, it hurts a lot more to get hit with a ton of bricks versus a ton of feathers...)
i have always wondered whether you could take the 'official' NFL (or whoever in Big Sports) broadcast, and overlay a snarky, mocking narration, and 're-broadcast' that as a parody ? ? ?
*somehow*, i doubt that -EVEN IF 100% 'legal'- anyone would be able to pull that off...
the point being, that EVEN 'LEGAL' uses of Big Media will NOT be suffered, as we are all learning to our peril...
art guerrilla
aka ann archy
eof
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> is in writing and signed by the owner of the rights conveyed
That's an excellent point. But, even if the videographer signed something transferring copyright (which they did not), there is still the issue of fair use.
Okay, NASCAR may now own the copyright, but wouldn't the videographer's use of the video to show something of great public interest, and comment on it, be fair use?
Oh wait . . . but what about that mythical "hot news" doctrine?
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Awesome!
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Terms of entry
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Re: Terms of entry
In his rush to try and demonize DMCA notices, which are effective tools in combating his beloved piracy, Mike Masnick again forgot to do his homework.
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No matter how many balls you fire, that tanks is just going to keep moving.
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"was blocked on YouTube out of respect for those injured in today’s accident. "
That's not a copyright claim.
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How do you feel that your words have directly lead to piracy?
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As for the assignment of copyright... not even close. You really dont know anything to do with contract law, copyright, nor interference torts do you? And lets not forget criminal action that could be placed upon any agents of the organisation under the standard US color of law statutes.
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This needs to repeated continuously until those who support Nascar in this takedown (and Nascar themselves) can answer this question in full. Until then, what they did is defacto censorship and image control. Selective enforcement won't wash with people.
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> Selective enforcement won't wash with people.
What NASCAR did was perjury.
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In any case, it's a good thing Google/Youtube put it back online. At least when there's enough outrage they'll actually check what they take down.
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Re: Terms of entry
As noted above, you cannot assign copyrights by such a manner. You need the current copyright holder to physically sign the assignment. So any claim otherwise would not be a valid transfer.
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But what about on something that you may or may not create, and are not creating "in consideration" of a payment for that creative work?
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At last you've gotten to the concept of what belongs to others:
But of course Mega.co.nz Mike only uses uses notions as suit his immediate case, doesn't bother with consistency.
Take a loopy tour of Techdirt.com! You always end up at same place!
http://techdirt.com/
Where Mike sez: uploader + file host + links site + downloader = perfectly "legal" symbiotic piracy.
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Re: At last you've gotten to the concept of what belongs to others:
NASCAR is a corporation with the monopoly on car racing, trying to exercise power here, that's all, and we need to quit letting corporations dictate "terms". But of course Mike doesn't go into the corporate aspects -- let alone is he anti-corporation -- just restricts to the narrow "copyright" area.
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Re: Re: At last you've gotten to the concept of what belongs to others:
FTFY
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Re: Re: At last you've gotten to the concept of what belongs to others:
FTFY
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Re: Re: At last you've gotten to the concept of what belongs to others:
The Ohio State University Marching Band had a video game review during a half-time show on September 8, 2012...filmed by hundreds of fans who posted it on youtube...not one of them were asked to take down the videos.......They bought standard tickets as those would in the NASCAR Stands would....and yes, the Ohio State University does in fact have press tickets....there are hundreds of videos on YouTube of the event.
http://www.youtube.com/watch?v=sAzzbrFgcUw
"NASCAR is a corporation with the monopoly on car racing, trying to exercise power here, that's all, and we need to quit letting corporations dictate "terms"."
NASCAR is not the only auto racing industry in the US. There are several other specialized Auto Racing industries such an NGTA (National Grand Touring Association)and Formula 1 Kart Racing to name a couple.
Now as far as corporate aspects...there was never any to deal with in the first place. The issue is purely copyright and DMCA abuse. There are many other journalists who had an issue with the same event. Mike Mansick is in fact writing about how they had no right to even issue a take-down notice. The focus is not narrowed it is rooted in the subject of copyright...I am no journalist myself but I can see that it is a copyright issue from the morning news paper I got......
The creator of the content was not in fact a NASCAR official but a fan, and had their footage taken down upon request via Google's completely flawed automatic take-down policy upon DMCA take-down requests.
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Re: At last you've gotten to the concept of what belongs to others:
You really need to update your list of daemons.
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Re: At last you've gotten to the concept of what belongs to others:
I'll wait.
Actually, I won't, because I don't have fucking forever waiting for you to not come up with an answer.
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Re: Re: At last you've gotten to the concept of what belongs to others:
ootb may break out of his moronic fantasies long enough to correctly recall the identity of the self-admitted infringers who post here. However, he will neither provide any evidence to back up his claims about others, nor admit that reality is far more complicated than the "I'm the hero, everyone else is a pirate" fabrication that he and his trolling brethren require for any of their arguments to make any sense.
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Re: At last you've gotten to the concept of what belongs to others:
Mike has routinely written that piracy is against the law and he does not condone it. However, knowing something is wrong and knowing it's going to happen anyway and writing how one can make the best of a bad situation is something completely different. So it's not hard to see how you can conflate the issues and try and spin it to "Mike finally accepts you don't have the right to others property".
Poor Blue. Seems like your little vacation was definitely not spent getting a clue.
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Re: At last you've gotten to the concept of what belongs to others:
Someone clearly ran away for months for a heaping helping of RIAA corporation jizz.
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It wasn't their video, why did they claim copyright? Can we issue DCMA's to NASCAR & claim that we saw someone hitting another person over the head with a chair while the camera was panning out to show the entire field making the last turn? If they say no, can we claim that NASCAR is promoting violence since they won't take it down?
See how stupid this sounds? That video does not belong to us, so we can't issue a DCMA. But if a fan makes a video, it suddenly becomes theirs?
It is very clear that the owner of the video can take them to court for filing a false DCMA claim that "harmed" them for MILLIONS of dollars. Why not...THEY'LL do it to us in a heartbeat! And this case is clear abuse of the DCMA & a false claim which should have penalties by law.
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The copyright does belong to NASCAR, but it was fair use.
However, the clip was clearly fair use by virtue of its news value. Google reinstated it quickly, without having waited the 10-day counternotice period mandated by the DMCA, because it was secure in the knowledge that the clip would pass the fair use sniff test.
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Re: The copyright does belong to NASCAR, but it was fair use.
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Re: Re: The copyright does belong to NASCAR, but it was fair use.
Transfer of any copyright needs to be "in writing and signed by the owner of the rights" (17 USC §204). It can not be accomplished as a "term of entry". (quoted from earlier)
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Re: Re: Re: The copyright does belong to NASCAR, but it was fair use.
I really wish the topic of IP law was either much simpler, or much less necessary. If it is going to be necessary for everyone to understand this kind of stuff in depth just to carry out normal, everyday life, what hope do most people have of staying on the right side of the law?
I spend way too much time digging into this stuff and trying to understand it already, and still there are surprises and logical pretzels everywhere you look.
Uggh.
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Re: Re: Re: Re: The copyright does belong to NASCAR, but it was fair use.
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Re: The copyright does belong to NASCAR, but it was fair use.
According to most legal experts....the user that created the video at the event....owns the copyright to that footage. It was news worthy and technically fair use. But the person that shot the footage on their camera or phone as it happened will own that copyright. There was no reason for NASCAR to issue the takedown.
Even as far as saying that it was because "the person didn't have a press ticket", is a lame statement from NASCAR...which was their other excuse for the takedown request.
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Re: The copyright does belong to NASCAR, but it was fair use.
Whatever was "long settled" before Saturday doesn't mean anything, if the back of saturdays ticket doesn't include language about signing over copyrights.
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Re: Re: The copyright does belong to NASCAR, but it was fair use.
You can't be made to agree to something just by buying it, where a law elsewhere states that it can only be done by signing an agreement to that end.
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Re: The copyright does belong to NASCAR, but it was fair use.
but a common one for legal types.
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Re: The copyright does belong to NASCAR, but it was fair use.
This isn't the same as rerecording a broadcast that NASCAR and the broadcaster co-created and own copyright on. You need permission to take video of the event without NASCAR waving that ticket language in your face, but failing to get permission does not make the copyright of a work belong to someone who didn't create the work.
Taking photos or video without permission on private property might fall into privacy law, which is even less permissive than copyright, but again, NASCAR is just throwing out whatever tools it has available.
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Re: The copyright does belong to NASCAR, but it was fair use.
That's not a legal transfer or assignment of copyright.
However, the clip was clearly fair use by virtue of its news value.
That, however, is true, but I still disagree that NASCAR owned the copyright.
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Re: The copyright does belong to NASCAR, but it was fair use.
I'll wait... Though I won't hold my breath since under contractual law it historically is in fact the absolute opposite.
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Re: Re: The copyright does belong to NASCAR, but it was fair use.
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Re: The copyright does belong to NASCAR, but it was fair use.
Then you should have no problem presenting caselaw to back up your claim.
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not sure if typo, or sad truth :|
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We get to hear of the challenged takedowns, but how many takedowns go unchallenged even though they should not have happened?
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The point is that the system is automated and it should not be. No matter what algorithm can be used to determine the legality of the video...automation has huge flaws when it comes to litigation.
The official web site where live streams of the Democratic National Convention were aired are a prime example of automated takedown notices being a failure.
The YouTube issue is automation and has been one since SOPA didn't pass.
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Minght not have been NASCAR (Directly)
NASCAR may not have been durectly responsible for the DMCA take-down request to the video in question in the first place. Their intent may have only to allow respect for the families of those injured. When called out for their DMCA abuse...they backed off and canceled the request.
I woke up early this morning to make breakfast for my wife before she headed off to teach. We were watching Good Morning America and that same video was featured there. Good morning America is a live show in the morning but each show is prepped weeks ahead of time. That had to have been clipped in after the take-down notice was "issued" by NASCAR. Then again the NHL doesn't even get that strict so who knows....
NASCAR did in fact mean it in their statement that they wanted the video taken down and Mike Mansick I commend you for at least admitting their intent was in the right place...I do however agree they went at it the wrong way.
I think this is the first time I heard of NASCAR ever really taking such DMCA measures against YouTube users.
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This I can inwardly laugh at :-)
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Another Avenue
This particular video does not show much in the way of the people injured. There was another video posted that said - "Fan Killed in NASCAR Crash" that had a DMCA notice immediately following the crash - I did not see the video just the notice.
So the DMCA notice was bogus by NASCAR but should there not be an avenue for them to at least have a delay period before such videos are posted?
We recently had a teacher at my school post a number of videos in which it was clear to anyone who knew him that there was some type of break - he was clearly not himself. I worked with his wife to have the videos removed, there was an option to remove the video because it was harmful to others. She was just trying to stop all the negative attention she was getting because obviously he needed help.
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Re: Another Avenue
"So I am not sure what the right answer is here. Yes NASCAR did abuse the DMCA notice, however should there be a way for them to delay the posting of such videos out of respect for the injured and their families?"
Precisely measured and stated, how does "respect for the injured and their families", a small number of people, outweigh the rights of the copyright holder to share his/her work detailing the reality of an important news event with millions and millions of others who have a legitimate right to know about what happened?
And while we're at it, what other ways would you prefer that we all self-censor ourselves?
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Re: Another Avenue
The issue is more of ethics. I honestly think that in spite of the intent by NASCAR to take it down...they could have used an alternate avenue. They could have requested that the video be taken down directly to the person who uploaded it to YouTube out of reverence of those injured and dead.
So it really is hard to ask that and the real question is...Doesn't Google have other options for Take-Down requests outside of DMCA abuse??? Simply put it seems it does not in fact have other avenues for take-down requests other than copyright and DMCA.
http://www.youtube.com/yt/copyright/copyright-complaint.html
You know, now that I think about it Mike Mansick, maybe NASCAR showed genuine intent on its statement, but had no other avenue to go.
http://www.youtube.com/yt/copyright/copyright-complaint.html
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The short answer is no.
Freedom of speech and freedom of the press does not stop when it is disrespectful to someone. This situation would be even worse because NASCAR gets to decide what is respectful. Why would they become the ones to determine what is respectful and when?
Allowing an entity - government or otherwise - to decide when a video someone else created can be disseminated is a direct path to censorship.
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No. They are not the Respect Cops, and should not have that power.
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There was absolutely nothing in the video that was taken down that a reasonable person would consider disrespectful to the injured and their families. It was a lame excuse by NASCAR, who were doing it purely for image control.
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What the hell gives NASCAR the right?
Even if they held the copyright... what gives them to stop all videos? This is obviously news worthy so first use would likely apply anyway.
The even bigger issue here is that they believe they have the right to censor free speech because they don't believe it to be right or fair or "respectful" to someone. That's bullshit and if we want to continue free speech, censorship of this kind must be punished.
Let me be clear on this: I don't care about the abuse of copyright directly. That's bad, but I care about the process outlined in our laws say that someone or a company has the right to censor without reprocussions. Censoring free speech (or taking away another American's rights) should be punishable and the loopholes or exceptions in whatever policy which allows them to do this should be fixed in the courts (cause Congress is busy not passing budgets).
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Nothing will happen.
ABSOLUTELY NOTHING WILL HAPPEN!
So vent your frustration in forums, and with the stacked FPTP voting systems we have here (also the Grey Typewriters play a role) there's nothing you can do.
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That's Me
I had a couple of thoughts:
1. There is probably a clause when you buy or use the ticket, OK, sure, you probably do, but...
2. The mobile videos aren't offering some alternative to viewing the official telecast.
3. The mobile videos are offering something that the network cameras couldn't.
NASCAR cares a lot about its image, I'm not a huge fan but I enjoy catching a few races per season, especially the big ones, and even I know that NASCAR cares a lot about its image. I think they take safety seriously, as seriously as you can when your entertainment involves high powered automobiles circling a track at nearly 200 miles per hour. As a semi-fan, I'll have to face it, things happen, it is dangerous. How many of us have actually watched someone die? I did, Dale Earnhardt #3, sure, he was in a car, but millions watched a man die on live TV, and on endless replays. As fans and semi-fans and even non-fans, we don't want to see people get hurt, not drivers, crew, officials, or fans, etc. but when it happens, we don't want NASCAR to cover it up, even if behind the scenes we know that NASCAR is trying to figure out what went wrong and how they could prevent it in the future, while of course, preserving what makes their sport (or non sport depending on your point of view) what it is, an exciting exhibition of engineering, speed, endurance, and all that good stuff.
Thanks for the shout out. This comment was a little rambley, but I wanted to get it in before I crashed for the night.
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DCMA
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Um, what?
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