A Personal Struggle

No, it's probably not what you think. My struggle is that I can never decide when it comes to lawyers. Do I love them? Do I hate them? It's hard to say. Today, I think I'll concede that I love this one at least. I hope she's a looker and here's why:

NFL fumbles DMCA takedown battle, could face sanctions

By Jacqui Cheng Published: March 20, 2007 - 11:35AM CT

It's no secret that some content owners don't seem to understand how the DMCA works—that, or they simply don't care when sending mass takedown notices. This seems to be the case with the recent saga of legal maneuvers between the National Football League (NFL) and Brooklyn Law School professor Wendy Seltzer. The two have been going back and forth with DMCA-related "requests" since early February—with YouTube stuck in between—and in the process, the NFL itself appears to have violated the DMCA.

The story began when Seltzer posted a YouTube clip on her personal blog in early February. The clip showed the NFL's copyright message that aired during the Super Bowl:

This telecast is copyrighted by the NFL for the private use of our audience, and any other use of this telecast or of any pictures, descriptions or accounts of the game without the NFL's consent is prohibited

Seltzer took exception to this claim—as it clearly makes no concession for fair use—and wanted to show her students how content owners are beginning to exaggerate their rights.

Five days later, she received a DMCA takedown notice through YouTube, saying that the NFL had claimed copyright violation and that the clip had been removed. Ironic? Perhaps, but it gets better. Seltzer, law professor by day, is also staff attorney for the Electronic Frontier Foundation (EFF) by night and founder of Chilling Effects, a web site dedicated to educating the public about online rights. Very well aware of her own rights under DMCA, she promptly sent a counter-notification to YouTube (generated by the Chilling Effects counter-notice generator, no less), citing Section 512 of the DMCA saying that YouTube must replace the material if they receive a counter-notification asserting "good faith belief" that the material removal was a mistake.

Several weeks after that, Seltzer's Super Bowl copyright notice clip came back online as a result of her counter-notification. Seltzer was happy that the system appeared to work the way it was designed to work and assumed that the NFL had decided not to sue to keep the video offline. She was wrong, however. Just 12 days later, the NFL filed yet another takedown notice with YouTube for the clip, and YouTube complied once again.

This is where the saga starts to get messy. Seltzer's counter-notification—which was forwarded to the NFL from YouTube—clearly described her use of the clip as fair use: "an educational excerpt featuring the NFL's overreaching copyright warning aired during the Super Bowl." As Seltzer outlines in her blog post, the NFL's only option in response to her counter-claim would be to force her to remove the clip via court proceedings. This obviously did not happen, and instead, the NFL chose to ignore her claims completely. After receiving her counter-notification claiming fair use, sending another takedown notice over the same content is considered a knowing misrepresentation that the clip is infringing, according to DMCA section 512(f)(1). Under the DMCA, the NFL would be liable for all legal fees incurred by the alleged infringer, along with damages.

Essentially, the NFL is now in violation of the same law that it is using to try to protect its own content. And, instead of following the proper procedures outlined in the DMCA, the NFL appears to be choosing to beat her over the head with takedown requests. Would this be happening if YouTube was not caught in the middle, hosting the clip for Seltzer? There is no way to know, but it seems that the trend du jour is for content owners to target YouTube with these requests, knowing that YouTube is likely to comply immediately and ask questions later. But Seltzer isn't likely to let this issue rest now, and seems more than happy to continue pushing back on the issue until it goes to court. It's hard to imagine that a court would do anything but decide in Seltzer's favor, and if that were to happen, it may force content owners to be more cautious about sending takedown notices in the future.

Here's the link to the article. I just get giddy when a large company/corporation/whatever decides that it can push people around and they push the wrong person. In this case, the NFL has pushed a lawyer into a legal battle and the lawyer was the one that actually knew what they were talking about. It looks like the NFL lost big time and man do I love that. There may be hope for humans after all.

-Salem
I am the law!