The Digital Millennium Copyright Act (DMCA) has been invoked on countless occasions by copyright holders in efforts to prevent the illegal use of their content. The NFL, however, is quickly finding out that the DMCA is also a powerful protective device for those engaging in fair use.
Brooklyn Law School professor Wendy Seltzer is all too familiar with the intricate workings of the DMCA and copyright in general. In teaching her students about the limits of copyright holders, Seltzer posted a YouTube video clip of the NFL’s copyright policy, which was broadcast during the Super Bowl. Seltzer asserts that the NFL claims content rights that completely ignore the concept of fair use.
A few short days later, Seltzer received notification from YouTube that the video had been removed as a result of a DMCA takedown notice from the NFL, claiming that the clip in question infringed upon copyright.
Seltzer, also a staff attorney for the Electronic Frontier Foundation (EFF), quickly filed a counter-notice based on the following exception to the DMCA:
Audiovisual works included in the educational library of a college or university’s film or media studies department, when circumvention is accomplished for the purpose of making compilations of portions of those works for educational use in the classroom by media studies or film professors.
The next logical step in the process would be for the NFL to file legal action against Seltzer if they still felt that the clips were infringing upon copyright, but instead the league opted to ignore the counter-notice and send yet another takedown request to YouTube.
Seltzer comments in her blog:
Since my counter-notification included a description of the clip, “an educational excerpt featuring the NFL’s overreaching copyright warning aired during the Super Bowl,” it put the NFL on clear notice of my fair use claim.
So if the NFL is aware of Seltzer’s fair use claim, why is the league still choosing to send takedown notices to YouTube rather than follow the processes outlined in the DMCA to resolve the conflict?
Jacqui Cheng at Ars Technica gives her take:
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.
Should this case ever make it to court, it will be interesting to see how the NFL will justify its blatant defiance to adhere to the procedures set up in the DMCA to handle these types of disputes.
You’d think that people would learn by now that it’s not a good idea to mess with the EFF.
