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NFL Caught Abusing the DMCA

kdawson posted more than 7 years ago | from the poorly-chosen-victim dept.

Censorship 357

Implied Oral Consent writes "You know how the NFL puts up those notices before every game saying '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?' Well, Ars Technica is reporting that Wendy Seltzer thought that that was over-reaching and posted a video of the notice on YouTube. Predictably, the NFL filed a DMCA Take Down notice on the clip. But Ms. Seltzer knows her rights, so she filed a DMCA Counter Notice. This is when the NFL violated the DMCA, by filing another Take Down notice instead of taking the issue to court — their only legitimate option, according to the DMCA. Unfortunately for the NFL, Ms. Seltzer is a law professor, an EFF lawyer, and the founder of Chilling Effects. Oops!"

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Is she single? (2, Funny)

ILuvRamen (1026668) | more than 7 years ago | (#18425017)

lol I wonder if she'd single. I'd marry her :-D hehehe. Well anyway, anyone know what the NFL owes in fines or to her for issuing a second notice? it doesn't sound like it would be too bad cuz it's like a tiny little technicallity.

Re:Is she single? (4, Funny)

mrbluze (1034940) | more than 7 years ago | (#18425615)

I'd marry her too, except I think it would upset my wife and eight kids.

FROSTY P1SS! (-1, Troll)

Anonymous Coward | more than 7 years ago | (#18425023)



So the other day this big burly guy from the NFL tossed me his ball... actually, it was both of his balls and that was right before he tossed my salad. Man, I thought DMCA takedown notices were bad because all I got initially was "Nothing for you to see here. Please move along." And shit is it hard to move along when you've got some big burly guy tossing your salad, let me tell you!

 

well, according to the fbi... (1)

synjck (1069512) | more than 7 years ago | (#18425049)

"Don't mess with football." [wikipedia.org]

she shouldn't mess with football.

Re:well, according to the fbi... (5, Interesting)

Benaiah (851593) | more than 7 years ago | (#18425111)

Quite a clever woman.
I wonder if filing a DMCA counter claim and having it ignored is grounds for dismissal and so now she can keep it up on youtube forever?

Re:well, according to the fbi... (1)

RealGrouchy (943109) | more than 7 years ago | (#18425225)

she shouldn't mess with football.

Why not?

This guy [zug.com] had a little fun [revver.com] at Football's expense, and you don't see much gasping about it.

- RG>

If everyone does it, it's not a crime. (-1, Offtopic)

BillGatesLoveChild (1046184) | more than 7 years ago | (#18425057)

And even Bill Gates has admitted to watching pirated movies on YouTube:

http://www.computerworld.com/blogs/node/2803 [computerworld.com]
http://labnol.blogspot.com/2006/06/bill-gates-admi ts-watching-pirated.html [blogspot.com]

Remember Prohibition?

In other news... (1)

Phroon (820247) | more than 7 years ago | (#18425083)

To paraphrase Robot Chicken: "In other news, the NFL got totally served."

Re:In other news... (0)

Anonymous Coward | more than 7 years ago | (#18425229)

And to quote South Park: "It's on."

Re:In other news... (0)

Anonymous Coward | more than 7 years ago | (#18425401)

You mean they're going to be F'd in the A.

Re:In other news... (0)

Anonymous Coward | more than 7 years ago | (#18425793)

As a secret member of the secret Anti-Gay organization Congress, i will affirm that any attempt to "F" anyone in their "A" will be punished by a minimum of 50 years in federal prison.

Homer say (1)

nedder (690308) | more than 7 years ago | (#18425091)

The d'oh heard 'round the world.

To quote Peter Griffin... (2, Funny)

w00f (872376) | more than 7 years ago | (#18425123)

"ehh... uhhh... I uhhmm....ehh....what?" Seriously - posting a notice to take down a notice to post a notice of a takedown notice? Who keeps track of this crap?

Whistle (3, Funny)

truckaxle (883149) | more than 7 years ago | (#18425129)

Zebra adjusts volume on belt controller....

"10 yards for Illegal Procedure by the offense, replay first down"

Re:Whistle (3, Informative)

bersl2 (689221) | more than 7 years ago | (#18425293)

Illegal procedure is a five-yard penalty.
 
:)

Re:Whistle (0, Troll)

Anonymous Coward | more than 7 years ago | (#18425511)

Illegal procedure is a five-yard penalty.


If you were in the NBA you would receive a technical for arguing the call.

Zebra call being incorrect matches the storyline, ie here the NFL Lawyers and YouTube were the Zebras.

Lawyers in striped uniforms would please lots of people, with the stripes horizontal instead of vertical of course.

AC intercepts passed jokes, races downfield listening for whistles and watching Mod Zebra's for penalty flags....trips, landing funny bone first under cheerleader's bench. AC looks up, remembers this is Slashdot when he sees all the cheerleaders are male geeks and nerds. AC starts searching YouTube so he can file a take down notice if any video of this reaches there.

Re:Whistle (2, Funny)

cei (107343) | more than 7 years ago | (#18425493)

Sorry, ref. Can't replay first down without consent of the NFL...

Just ridiculous notice to begin with (5, Insightful)

spoco2 (322835) | more than 7 years ago | (#18425131)

I'm an Aussie, so I've never watched an NFL game such as this, but that notice "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" is just plain crazy (hence her initial video posting I suppose)... I mean trying to stop people DESCRIBING an event... dear god who the F*ck do they think they are? What are you supposed to do when you're talking to your mates about the big game?

"Hey Bob, see the big game last night?"
"Yeah Gary, I sure did... it was awesome!"
"What did you think about the touchdown in the..."
"SSSSSSHHHHH! What are you doing Gary? You can't discuss the game without prior consent... just hang on a sec."

Ring ring... ring ring...
*Welcome to the NFL DMCA Hotline, your call is important to us, you are currently number 13445 in the queue*.

"Oh F*ck that, let's talk about world political events"

Re:Just ridiculous notice to begin with (5, Informative)

Paradise Pete (33184) | more than 7 years ago | (#18425173)

I mean trying to stop people DESCRIBING an event...

They're not saying you can't describe it. They're saying you can't use their description of it. In other words, the announcer's words. A very similar "notice" has been used for decades by baseball broadcasters. So similar, in fact, that there might be copyright issues ;-)

Re:Just ridiculous notice to begin with (4, Informative)

spoco2 (322835) | more than 7 years ago | (#18425215)

This isn't obvious from the wording, and even if it were so, you're in almost as absurd waters.

"Wow, Big Bobby Mc Bob Bob (can you tell I haven't seen any NFL broadcasts?) really went to town on the aquatically themed team's linebackers last night didn't he? What was the term he used?"

"I wouldn't like to say Norm, for fear of the NFL slapping a DMCA notice on my flabby arse."

Re:Just ridiculous notice to begin with (5, Funny)

Dachannien (617929) | more than 7 years ago | (#18425241)

Heck, you could post any random sentence to your weblog and be inadvertently quoting John Madden's commentary during a football game.

And if it has nothing to do with baseball... (0)

Anonymous Coward | more than 7 years ago | (#18425715)

You almost certainly quoted Joe Morgan.

http://www.firejoemorgan.com/ [firejoemorgan.com] :-)

Re:Just ridiculous notice to begin with (2, Funny)

kingsean (980135) | more than 7 years ago | (#18425781)

5:00pm - I JUST got back into my dorm room, and what am I greeted with but some girl on my floor and her mom was sitting on a couch together enjoying some sort of hot beverage! I flipped out!. Because, I mean, if you see two women sitting together drinking tea, you know they're going to start talking about their monkey problems [youtube.com] ...

Mood: Apathetic :|
Currently Tuned Into: Dead or Alive - You Spin Me Round (Like a Record)

Re:Just ridiculous notice to begin with (5, Informative)

Lord Kano (13027) | more than 7 years ago | (#18425581)

They're not saying you can't describe it.

They tried to shutdown unauthorized fantasy football activities on the basis that the events that took place in the game are covered by their copyright and that all player stats are the results of those copyrighted events.

LK

Re:Just ridiculous notice to begin with (4, Interesting)

Animats (122034) | more than 7 years ago | (#18425629)

I mean trying to stop people DESCRIBING an event...

The National Basketball Association already tried that and lost. NBA sued a cellular service that sent out play by play score updates. (National Basketball Ass'n v. Motorola, Inc., 105 F.3d 841 (2d Cir.))

Re:Just ridiculous notice to begin with (2, Funny)

c.r.o.c.o (123083) | more than 7 years ago | (#18425185)

"Oh F*ck that, let's talk about world political events"


You might be on to something here... :)

Re:Just ridiculous notice to begin with (0)

Anonymous Coward | more than 7 years ago | (#18425189)

you are absolutely right.

and me being the drole american, i read your post with an imaginary accent...and it was even BETTER!!!!

I was like, FUCKING A MAN!!!! WHAT HE SAID!!!

Re:Just ridiculous notice to begin with (1)

Cyraan (840132) | more than 7 years ago | (#18425297)

Crikey!

Re:Just ridiculous notice to begin with (0)

Anonymous Coward | more than 7 years ago | (#18425233)

Why not let the NFL use the DMCA to remove themselves from the view of the public? I'm sure Underwater Hockey or Canoe Polo would love to become the new US national sport.

Re:Just ridiculous notice to begin with (1)

zakezuke (229119) | more than 7 years ago | (#18425457)

Why not let the NFL use the DMCA to remove themselves from the view of the public? I'm sure Underwater Hockey or Canoe Polo would love to become the new US national sport.

I thought baseball was the national sport... though refered to mostly as passtime. Acording to wiki football does get higher nielsen ratings than the World Series, but I also know with Major League Baseball there are a hell of alot more games. I believe NFL has a 16 game schedual where MLB has at least 40-45 per season.

Re:Just ridiculous notice to begin with (2, Funny)

The Mad Debugger (952795) | more than 7 years ago | (#18425635)

where MLB has at least 40-45 per season.


Woah. You're out of touch by more than a factor of three.. [wikipedia.org]

There's a reason that Baseball is the hardcore nerd sport. They try to play enough games to make statistically significant findings.

Re:Just ridiculous notice to begin with (1)

dan828 (753380) | more than 7 years ago | (#18425637)

where MLB has at least 40-45 per season.
Only if they go on strike, otherwise it's 162 games per season.

Re:Just ridiculous notice to begin with (0)

Anonymous Coward | more than 7 years ago | (#18425323)

The first rule of NFL Club is we don't talk about NFL Club.

Re:Just ridiculous notice to begin with (1)

iPaul (559200) | more than 7 years ago | (#18425413)

Super bowl Sunday is also one of the top days for spousal abuse. If your team looses and you beat your spouse, is that a form of infringement?

Re:Just ridiculous notice to begin with (5, Informative)

Inthewire (521207) | more than 7 years ago | (#18425517)

Super bowl Sunday is also one of the top days for spousal abuse.

No [snopes.com]

Well, it's probably in the top few hundred.

And what the hell does "my" team loose? Their bowels?

Re:Just ridiculous notice to begin with (1)

earthbound kid (859282) | more than 7 years ago | (#18425849)

"SSSSSSHHHHH! What are you doing Gary? You can't discuss the game without prior consent... just hang on a sec."

Ring ring... ring ring...
*Welcome to the NFL DMCA Hotline, your call is important to us, you are currently number 13445 in the queue*.


Actually, the notice mentions that you need express written consent, so just making a phone call wouldn't be enough.

So now what? (1)

bendodge (998616) | more than 7 years ago | (#18425147)

If she sues, will the courts hold the NFL to the standard, and if they do, will it be more than a slap on the wrist?

This looks to be a legal milestone, for better or worse.

Woo? (3, Interesting)

Rydia (556444) | more than 7 years ago | (#18425161)

So the judge says "you messed up, file an action."

And then they do. And then, the overwhelming likelihood is, she will lose. That's really sticking it to... er... uh... I have no idea. This really is the equivalent of a legal prank, setting things up so you can pop up in the end and say "gotcha!" without anything really changing.

Go team.

Re:Woo? (3, Interesting)

White Shade (57215) | more than 7 years ago | (#18425209)

i dunno, from the brief description, it looks like she's completely in the right, and it would require some pretty severely screwed up readings of the laws to make her lose in court. Unless there's some other loopholes buried in there, it seems about as straightforward as legal issues can ever be!

I'm definitely interested to see this play out in court... it'll be an extremely interesting legal battle, whether or not it sets any precedents or changes anything for anyone.

Re:Woo? (1, Funny)

QuantumG (50515) | more than 7 years ago | (#18425369)

You forget, she's an EFF lawyer.. losing when there are overwelming odds in their favour is what EFF lawyers do.

Re:Woo? (1)

White Shade (57215) | more than 7 years ago | (#18425405)

LOL :D

that's hilarious, to the point where it's probably true.. can you think of any particular instances of that happening? I'm curious now :)

Re:Woo? (1)

ResidntGeek (772730) | more than 7 years ago | (#18425571)

She clearly is in the right, but Rydia is right. The judge will likely say "That was illegal. Bad, naughty large corporation! Give me your wrist... *slap* Now file a proper lawsuit about it."

(And then the oral sex!)

Re:Woo? (2, Insightful)

Anonymous Coward | more than 7 years ago | (#18425289)

And then, the overwhelming likelihood is, she will lose

Not likely. There are many exceptions to copyright. Quoting of brief passages (or sometimes, even the entire work) for commentary, review, satire and education are perfectly legal.

And as a law prof, she probably knows what she is doing.

Moreover, the free publicity and law review article she will inevitably write about this can't be bad for her career.

No. (1)

plonk420 (750939) | more than 7 years ago | (#18425349)

from what i understand of the event, dcma, and fair usage, this was intended for a discussion, intellectual debate, educational setting. also, it wasn't an entire broadcast (like the way illicit mp3s and movies are). NFL has very little to stand on. using your eyeballs is not acknowleging a click-wrap EULA.

Re:Woo? (1)

rm69990 (885744) | more than 7 years ago | (#18425433)

Yes, because a short clip used for critique is forbidden by copyright law. Oh, and pigs fly as well. Time for you to get back to work and quit playing lawyer.

Re:Woo? (5, Interesting)

ZWithaPGGB (608529) | more than 7 years ago | (#18425475)

Umm, methinks you are unfamiliar with US Fair Use Criteria [stanford.edu] .

She's a Law Professor, using an excerpt of a broadcast, the minimally necessary portion of it, in order to create a derivative work or commentary (her class).
I wish there was an HTML tag for patriotism. If you don't like the USA, then don't read below.
Unlike the ROW, which, despite your self important (usually the result of an inferiority complex) kafeeklatsh derision of US, is actually a corporatist dirigiste (with the state being the largest corporation) hell-hole, the US is still a common-law, the law applies to everyone, power is delegated from the people to the state, entity, even if it doesn't always seem that way.
In this case, you've got someone who knows the law, and has the corporatists by the jock-strap. The NFL are toast.
God Bless the USA. BTW: I'm an Immigrant from Europe, Ireland Specifically. When I left, my Mum asked me why, I said "Because in America, you have the right to be wrong, in Ireland, you only have the right to be right." Irish by birth, US Citizen by choice.

Re:Woo? (0)

Anonymous Coward | more than 7 years ago | (#18425749)

, the US is still a common-law, the law applies to everyone, power is delegated from the people to the state, entity, even if it doesn't always seem that way.

Perhaps if you had grown up here you would have known that what you just spouted is a load of crap.
Back in the day it was much better, although your statement was still laughable nonsense back then. Perhaps it's still better here than in Ireland, but please don't spout delusions that "better than something is somehow good".

We need people here who will actually stand up for what this country once claimed to stand for, not sycophantic boot lickers like you have demonstrated yourself to be who will apologize for the criminal actions of our government and monied interests by claiming that "it's worse somewhere else".

Either step up and be a citizen or go the fuck home. We have far too many boot licking cowards here already. Enoguh that we're steadily getting more and more like "home".

Good thing about Civil Society (1)

philgross (23409) | more than 7 years ago | (#18425601)

It's often difficult to succinctly describe the difference between democracy as actually practiced in the USA, most of Europe, etc., and the pseudo-democracies seen in many countries that seem to have all the trappings, but don't quite work.

In a country with a functioning civil society, the weak can use the law to defend themselves against the strong (sometimes, with varying success, etc., but it is possible and does happen). In most countries without a well-developed civil society, it's unthinkable that a random civilian could win a suit against a rich, well-connected individual or company. In practice, their legal systems put power and money over the letter of the law.

In the rich democracies, businesses generally don't bother with overt criminality, because they'd just have to give up the money anyway. In countries without well-developed civil society, citizens don't bother going to the legal system in cases of crime or injustice committed by the rich and powerful.

It's cute to be cynical, and I'm not trying to argue that e.g. the U.S. legal system isn't skewed towards rich and powerful players, or that big companies are always perfect citizens. But the fact that she will probably win this case points to a deep, significant difference between "the west" and the rest.

Re:Good thing about Civil Society (5, Insightful)

Darby (84953) | more than 7 years ago | (#18425821)

In the rich democracies, businesses generally don't bother with overt criminality, because they'd just have to give up the money anyway.

Wow. What color is the air on your planet?
Businesses quite often go straight for overt criminality because they know that they can make a billion and pay a million dollar fine.
Heck, just look at Microsoft for the canonical example of that.

It's cute to be cynical

No, cynicism about that and realism coincide completely. There isn't anything "cute" about it.

But the fact that she will probably win this case points to a deep, significant difference between "the west" and the rest.

You misspelled "might".
It's only even "might" because what the NFL is trying to pull is *so* blatantly illegal. And it's only that because the DMCA is so new. This kind of shit is the purpose of that and similar recent laws such as the traitor act (Orwellianly named "Patriot") which, surprise surprise is being abused exactly as predicted by every sane person. A real no brainer since that was its purpose.

Perhaps you should pull your head out of whatever orifice you've stuffed it in and look around.
Maybe if you did you'd notice that the differences you're feebly attempting to illustrate are getting smaller and smaller all the time.
The fact that this is even happening at all proves that point.

The Last Time I Described A Football Game (0, Offtopic)

Skeetskeetskeet (906997) | more than 7 years ago | (#18425175)

Terry Tate broke my collarbone. Never again.

get them! (4, Insightful)

bzipitidoo (647217) | more than 7 years ago | (#18425191)

The NFL has volunteered to be the object lesson of the moment, bless them. That NFL notice has been around for years-- since the 1980's at least-- and it always seemed out of step with reality. I'm not much of a TV watcher, so I don't really know but I can't recall any other sport or other kind of show putting up notices like the NFL's.

Here's hoping they get roasted in court, and don't get off with a wrist slapping. One more item to add to the pile of reasons why the DMCA was a bad idea. If events like this make enough of a stink, perhaps Congress will have to revisit the DMCA.

Re:get them! (2, Informative)

AO (62151) | more than 7 years ago | (#18425263)

I can't recall any other sport or other kind of show putting up notices like the NFL's

How about the NBA and MLB? I know when I watch the Spurs (basketball) local telecast, the have a lawyer from a local firm read the exact same message, just replacing NBA with NFL.

Re:get them! (5, Interesting)

Saxophonist (937341) | more than 7 years ago | (#18425415)

If events like this make enough of a stink, perhaps Congress will have to revisit the DMCA.

More than likely, if there is a revision to the DMCA stemming from this event, it would be to eliminate the "loophole" that penalizes a second takedown notice after a counternotice. Or, counternotices would no longer be available. The stakeholders in the DMCA have sufficient finances to make sure that revisions would benefit their perceived interests, not those of the public at large.

Go get 'em Wendy (1)

cygtoad (619016) | more than 7 years ago | (#18425203)

Most content providers don't want to deal with the actual letter of the law. They just want to bark out take down notices.

NFL: YouTube, Jump boy jump! Now take down all these posts.
YouTube: Arf!

It is pitiful that so much stuff can be taken down with so little thought and accountability. Without watch dogs like Wendy Seltzer these robotic asshats would trample all over our free speech rights.

Re:Go get 'em Wendy (0)

Anonymous Coward | more than 7 years ago | (#18425425)

For the last fucking time, youtube is not your personal conduit of free speech. They can censor whatever they want, for whatever reason they want. If you don't like it, make your own youtube.

Go Steelers! (0, Offtopic)

Oswald (235719) | more than 7 years ago | (#18425211)

Black and Gold forever!

Huh? What do you mean, that's not what this is about? She said "NFL."

I heard her.

Re:Go Steelers! (1)

CrazyJim1 (809850) | more than 7 years ago | (#18425295)

Steelers rock. You know whats fun to do? When someone asks what the score of the game is, tell them,"All accounts of the game are rights of the NFL. I need to get the NFL's permission to tell you that."

Re:Go Steelers! (-1, Offtopic)

Anonymous Coward | more than 7 years ago | (#18425357)

Gold my ass. That's yellow, and you damn well know it.

Huh? (0)

uvajed_ekil (914487) | more than 7 years ago | (#18425223)

Okay, I love free speech and fair use and hate legislation that is widely abused, like the DMCA. But what is the real point of this all other than to piss-off the NFL? Sure, the NFL acted improperly by sending a second DMCA take-down notice. But wasn't Seltzer acting contrary to the law to begin with?

I'd love to see the DMCA go away, but violating it just to entice someone else to violate it further doesn't have any effect on the law itself. If I am missing something here, please tell me, since the NFL appears to have acted within the law initially. I know two wrongs don't make a right, but I don't think three do either (1. The DMCA, 2. Seltzer, 3. The NFL).

Re:Huh? (4, Insightful)

king-manic (409855) | more than 7 years ago | (#18425251)

The point is her original action did not violate any laws. The NFL failed to follow the letter of the law.

Re:Huh? (1)

nanoflower (1077145) | more than 7 years ago | (#18425271)

Is it a violation? There's a fair use law (I think that's the one) that lets people use a small portion a copyrighted piece. Aslo she chose the one peice that should never have been an issue. I don't know why she posted it but given her background it might have had to do with a copyright discussion in which case it gets back to the Fair Use (or whatever it's called) law. She's certainly one that would be likely to know what laws make it okay to post that VERY small portion of the typical game broadcast.

Re:Huh? (3, Informative)

EzInKy (115248) | more than 7 years ago | (#18425291)


But wasn't Seltzer acting contrary to the law to begin with?


No, she was exercising fair use rights to educate people about misuse of the DMCA.

Re:Huh? (4, Informative)

vux984 (928602) | more than 7 years ago | (#18425305)

But wasn't Seltzer acting contrary to the law to begin with?

Not according to Seltzer.

Her contention is that she posted a brief clip for legitimate educational purposes. She is invoking her fair use rights, and therefore not contrary to any law.

(Furthermore she only posted the copyright notice, not even a clip of the football game itself, and the NFL claiming copyright infringement of the copyright notice is almost absurd.)

Not so absurd (1)

davidwr (791652) | more than 7 years ago | (#18425347)

The NFL does have a legitimate claim on a "more than minimal" copyright notice. Their notice is longer than a simple "copyright 2007" and contains at least a modicum of creativity.

If some other sport were to use their copyright notice verbatim and substitute XYZ for NFL, the NFL might have a course of action.

However, the recipient of the takedown notice is well within "fair use" rights to use the notice as she did. The NFL showed brazen stupidity or at the very least robotic behavior when it asked her to take it down not once but twice.

The last time I checked, robots, unlike organizations, were not considered "legal persons" and could not hold copyrights to anything. If the NFL is a robot then all bets are off.

Next up: Killer robot NFL attacks Supreme Court Building!

Re:Not so absurd (1)

numbski (515011) | more than 7 years ago | (#18425547)

An NFL robot you say? Where on earth could you come up with such a crazy idea [youtube.com] ?

Re:Huh? (5, Informative)

Dachannien (617929) | more than 7 years ago | (#18425343)

But wasn't Seltzer acting contrary to the law to begin with?

No.

(From 17 USC 107) ...the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

There is a larger explanation of this ensconced in the statute, but Seltzer's use of the work is easily covered by the fair use exception. She posted it for criticism and commentary purposes, not for profit; the clip was posted as the best way to report on factual information; it was a puny segment of the original football game broadcast; and there is virtually no negative effect on the NFL's market for the posted material (after all, who would buy a video clip of their copyright assertion).

The reason the DMCA counter-takedown provision is there is because the public has a right to use copyrighted materials in this fashion, and in this case, the NFL confounded Seltzer's ability to exercise that right through the second takedown request. This portion of the DMCA is actually fairly reasonable in protecting both copyright holders and the public interest, and Seltzer was exercising her rights under the law, so the NFL is solely and completely to blame here.

NFL wins (1, Informative)

dmsetser (7663) | more than 7 years ago | (#18425795)

According to YouTube...

This video is no longer available due to a copyright claim by National Football League

Re:Huh? (4, Interesting)

Sancho (17056) | more than 7 years ago | (#18425365)

The clip she used was short and used for educational purposes. It clearly falls under fair use. What is ironic is that she was using the clip to show how corporations are abusing the DMCA nad copyright law.

The NFL demanded that Youtube remove the clip as per the DMCA. This is their right as the content-holder if they believe that their copyright is being infringed.

Seltzer sent a notice to Youtube stating that she did not infringe the NFL's copyright (as it was a fair use of the clip). This is her right as per the DMCA.

At this point, the NFL is supposed to use the courts. Instead, they sent another C&D to Youtube.

What this really illustrates is that the DMCA safe harbor provisions are fairly flawed. It's economically infeasible to monitor clips, keep track of which ones have been C&D'd already, and then file suit for every infringement that comes back to them per section 512. Actually, /right/now/ that's probably not true, however if more people exercised their rights, it would be. Copyright needs to be a balance between the rights of the creators of the work and the rights of the people. If the burden on the corporation becomes too high, they'll simply buy a stricter law.

Re:Huh? (4, Insightful)

iPaul (559200) | more than 7 years ago | (#18425367)

No, the NFL is asserting rights to their material they don't have. If you take them at their word, you would have to get special permission from them to file a news report on the game, for example. That's clearly not the case. You don't have to have special permission to report on the superbowl. They would require, for example, you to get permission to take a 10 sec clip to show someone throwing a helmet. This falls under a paradigm known loosely as fair-use. For example, I don't have to get permission from a book author to quote a passage from their book.

What you do not have the right to do: Record the game on your Tivo and post the thing in its entirety, or substantial portions, and place your recordings on YouTube.

What they're making you do is to put yourself in legal jeopardy to protect your rights to use the material. They're not the only ones. For example, documentary film makers (read guys with no budget) often get requests to license music or images that just happen to show up in the course of filming. For example, a song playing in the background, maybe from a nearby house. Technically speaking, they do not have to license the song if it happened to be playing in the background when they were shooting. However, they often choose to pay the royalty fee rather than fight over it (a more expensive proposition), or just drop the scene.

We're heading for a world where you might have to take every photo you want to place on flickr, and photo-shop out the Coke label, the designer logo on the sweatshirt, and the images on any posters or paintings that happen to be in the shot. This is all because attorneys for the trademark or copyright holders want to make you fight for the rights you already have.

Re:Huh? (4, Interesting)

honkycat (249849) | more than 7 years ago | (#18425557)

The following is not meant to disagree with you (other than possibly on a small point, I can't tell from your post).

As far as I know, they're quite free to claim rights they don't actually have, so long as they don't actually take legally significant actions based on those statements. Similarly, I'm free to demand that you not take my picture while I'm standing in a public place. There's no legal requirement that I inform you that you are actually legally permitted to snap away (assuming you're not using my image for commercial purposes).

The law trumps their statement and it's up to the consumer to know his rights under the law. Their statement, perhaps sensibly, is stricter than what the law allows. They don't want you to be able to claim any rights to use their content beyond the bare minimum provided by law. Still, you are quite free to disregard any terms they've described that are stricter than the actual legal provisions. In the absence of a valid contract to the contrary, there simply is no mechanism for the NFL to add restrictions.

Of course, the DMCA take-down notices ARE legally significant. Making knowingly false statements means committing (IIRC) perjury. It's just possible that the original take-down notice may have been legitimate (although, honestly, no lawyer could possibly pass the bar and have a good faith belief that her use of the clip was in violation of the law, so even that is an EXTREMELY gracious statement). Once she filed her counter-notice, however, they can no longer claim this...

Re:Don't take a theory and state it as fact! (1)

Technician (215283) | more than 7 years ago | (#18425461)

I'd love to see the DMCA go away, but violating it just to entice someone else to violate it further doesn't have any effect on the law itself. If I am missing something here, please tell me, since the NFL appears to have acted within the law initially.

Was it violated? Was it fair use? Since the game wasn't recorded and posted online, I doubt the DMCA was violated. Please don't state the infraction as a done deal fact. A copyright notice was posted online for education in copyright law. Was that a DMCA violation?

Re:Huh? (0, Redundant)

rm69990 (885744) | more than 7 years ago | (#18425495)

Ever heard of fair use? She took a short clip showing the NFL's copyright notice, not the entire broadcast, for the purposes of educational debate. Precisely what fair use covers. And that's why the NFL violated the DMCA as opposed to taking her to court...

Re:Huh? (0, Redundant)

jmv (93421) | more than 7 years ago | (#18425599)

But wasn't Seltzer acting contrary to the law to begin with?

No. Ever heard of fair use?

Pedantic (0, Flamebait)

konstant (63560) | more than 7 years ago | (#18425237)

Legal expert with axe to grind tricks low-paid professional hatchet men at NFL into making a minor and unimportant error.

Re:Pedantic (1)

Oddscurity (1035974) | more than 7 years ago | (#18425341)

Low-paid professional hatchet men at the NFL who are probably going to need an Alka-Seltzer now?

Re:Pedantic (5, Insightful)

denttford (579202) | more than 7 years ago | (#18425419)

Pedantic?

You know what, in one day this woman has done more for my rights and the rights of others than you will in your life. If holding those who influence the law to actually abiding by them is pedantic, then I declare pedantry heroic.

Re:Pedantic (0)

Anonymous Coward | more than 7 years ago | (#18425725)

If holding those who influence the law to actually abiding by them is pedantic, then I declare pedantry heroic.


I'm glad you feel that way.

You know what? In one day this woman has done more for my rights and the rights of others than you will in your life.

Cheers. :)

Re:Pedantic (1)

jkrise (535370) | more than 7 years ago | (#18425453)

The DMCA is also a pedantic, pathetic attempt at social engineering. The error is netiher minor nor unimportant.

Re:Pedantic (2, Insightful)

etymxris (121288) | more than 7 years ago | (#18425465)

It's not a trick. If they're issuing take-down notices in the name of the law they should actually understand what the law says. Neither is it a spirit vs. letter of the law issue. The proper procedures for copyright holders to take in the DCMA are outlined quite explicitly, and this was intentional.

Besides, no take-down notice should have ever been sent. Her use clearly falls within fair use. If the NFL is depending on "low-paid professional hatchet men" to act in their name, and these people make mistakes, then the NFL still bears full responsibility for these mistakes. After all, these people are working as legal agents of the NFL.

Re:Pedantic (4, Insightful)

honkycat (249849) | more than 7 years ago | (#18425479)

Umm, no, it's not pedantry. Although I'd argue that the DMCA is deeply flawed, this provision is one of the few palatable things about it. It provides a bit of balance -- the copyright holder can demand that the service provider immediately remove infringing content and the provider can escape liability by complying. This provision allows the person responsible for posting the allegedly infringing content to vouch for and take responsibility for the content. At this point, the safe harbor has served its purpose and the service provider need not worry about liability.

The question is now between the copyright holder and the person responsible. The only sensible next step is to take the question to a court or drop it. Allowing repeated demands that the content be taken down would give WAY too much power to the copyright holder. The law has served its purpose and prevented anonymous copyright violation since someone came forward and took responsibility by filing the notice of fair use with the service provider.

The penalties for violation of process are critical. It's unreasonable to expect YouTube or other service providers to do anything other than comply with a take-down notice since that is the only way they can really be sure of satisfying the safe harbor requirements. The penalty section of the law gives a legitimate fair-user a mechanism to prevent abuse.

This was CLEARLY fair use and it was CLEARLY abuse by the NFL. This law is bad enough; don't let it be made worse by allowing the few limits it DOES have to be ignored. Take-down notices are serious legal documents and should not be issued lightly/automatically. I hope this is prosecuted vigorously.

Re:Pedantic (3, Insightful)

rm69990 (885744) | more than 7 years ago | (#18425539)

Please explain how exactly she "tricked" them. She exercised her rights under the DMCA, the NFL abused theirs. The NFL believed the clip was infringing, she believed it was fair use, so she properly filed her response with Youtube. The NFL should have raised the issue through the courts, and instead chose to abuse the DMCA by illegally filing a second take-down notice. Trickery on her part indeed! (That last sentence was sarcastic by the way).

Re:Pedantic (3, Informative)

iminplaya (723125) | more than 7 years ago | (#18425589)

Yeah, she tried to do the same thing to Ted Stevens [ktuu.com]

I suspect this will not change the NFL's behavior (2, Insightful)

iPaul (559200) | more than 7 years ago | (#18425273)

I strongly suspect the NFL will continue asserting rights they don't have, putting the burden on the other guy to show their use is fair use. The only thing that would make them change their mind is if it cost them a lot of money - and I don't see how this is going to cost them a lot of money. Even if they have to pay 100,000 in legal fees and damages if this goes to court and they loose, that's chicken scratch. I'm not exactly sure how Ms. Seltzer could show sizeable monetary damages to create the basis for a large enough settlement to matter. The real problem is that attorneys view this kind of behavior in the best interests of their clients. Make the other guy fight to protect his interests, and maybe it won't be worth his while. Even if it goes to court and she wins, I would expect their behavior would not change. If I did the same thing tommorrow, I suspect I would just get into to a "filing match" until they sued me. Or they sue YouTube, which might mean I have to sign up for another account before I could post content there again. However, it is very interesting to see that the DMCA does have a provision for abuse that might come back to annoy them, if only slightly.

Gotta say .... (-1, Troll)

edwardpickman (965122) | more than 7 years ago | (#18425435)

isn't this the same kind of nitpicking BS everyone is so upset about? Personally I hope the judge calls foul on both sides. She did it specifically to provoke a reaction. I'd rather see our court system used for something more productive that a tit for tat exchange over copyright. I think it's time for both sides on this one to grow up and I hope a judge tells them so before he tosses the whole thing.

Re:Gotta say .... (-1, Flamebait)

Anonymous Coward | more than 7 years ago | (#18425521)

Could even just once read the fucking article? Jesus, fucktards like you should be euthanized.

Re:Gotta say .... (3, Insightful)

Scudsucker (17617) | more than 7 years ago | (#18425537)

You speak as if both sides were equal, which is laughable. You have multi-billion dollar industries with hordes of thousand-dollars-per-hour lawyers and very copyright-holder friendly laws on one side, and consumers on the other. Consumers that in the vast majority of cases are not lawyers nor have teams of lawyers working on their behalf. Consumers that are a very distant consideration after said multi-billion dollar industries throw millions of dollars at Congress.

You need a nice warm cup of Get Some Frikkin Perspective.

Re:Gotta say .... (0)

Anonymous Coward | more than 7 years ago | (#18425551)

isn't this the same kind of nitpicking BS everyone is so upset about? Personally I hope the judge calls foul on both sides. She did it specifically to provoke a reaction.

When she was accused of wrongdoing, she obeyed the law and filed the appropriate paperwork in her defence. That's hardly nitpicking.

Nitpicking is sending Martha Stewart to jail for lying while being investigated for insider trading when there was no evidence at all that Martha Stewart engaged in insider trading.

I'd rather see our court system used for something more productive that a tit for tat exchange over copyright.

So would I. But until someone gets bitchslapped with a multi-million dollar judgement for perjury, fraud and costs, the dmca will be abused illegally.

Re:Gotta say .... (3, Informative)

Detritus (11846) | more than 7 years ago | (#18425565)

It's called a test case, and it isn't a trick or "nitpicking BS".

Re:Gotta say .... (0)

Anonymous Coward | more than 7 years ago | (#18425777)

Hopefully it's one of those sobby judges who likes to be on TV. And hopefully he gets busted smoking pot the next week. Hey, stranger things have happened.

Interview (1)

loconet (415875) | more than 7 years ago | (#18425437)

Here is an old article [slashdot.org] on an interview with her covered on Slashdot.

Here's an old photograph of her (4, Interesting)

elfuq (89094) | more than 7 years ago | (#18425497)

That I shot for the SF Bay Guardian.

old photograph [mrdodgy.com]

She's not just a lawyer, she's a cute geeky lawyer!

Re:Here's an old photograph of her (2, Funny)

Anonymous Coward | more than 7 years ago | (#18425567)

that's no woman. That's a MAN baby!

captcha: delights

Perjury (4, Insightful)

Detritus (11846) | more than 7 years ago | (#18425541)

It will probably never happen, but I'd like to see some of these people prosecuted and convicted for perjury. You know, the part of the affidavit where the author says that the above facts are accurate and true, under penalty of perjury. If you haven't personally verified the facts in the affidavit, you have no business putting your signature on the document. Any lawyer who rubber-stamps a bogus complaint should be disciplined or disbarred.

Re:Perjury (0)

Anonymous Coward | more than 7 years ago | (#18425695)

The DMCA only requires the lawyer filing the takedown notice to state they represent the person they claim to represent under penalty of perjury. The rest of the takedown notice is made with a good faith belief that it is correct.

What was her other defense (-1, Flamebait)

GISGEOLOGYGEEK (708023) | more than 7 years ago | (#18425579)

So if the NFL had done the right thing, and gone to court, what would her defense be? ... or would she even have to defend or be held accountable for her original copyright infringement? Sounds like she was trying to cause a hastle for the video hosting site as much as for the NFL ... or else she's been at it for months posting copyright material, waiting for the one time that her target screws up.

If not copyright infringement, she's opened herself up to a nuissance lawsuit.

Re:What was her other defense (0)

Anonymous Coward | more than 7 years ago | (#18425673)

She contends that her posting of the clip was within her 'fair use' rights- and I would like to think rightfully so.

I expect that aside from the NFL's faux pas her intent is to establish the NFL's overstepping the law in their denial of the public's fair usage.

Re:What was her other defense (2, Insightful)

eam (192101) | more than 7 years ago | (#18425677)

It's fair use, not copyright infringement. If they had gone to court, she would win.

Dear Wendy... (-1, Redundant)

Graham J - XVI (1076671) | more than 7 years ago | (#18425801)

Normally I'd be on your side in the case like this but this time it seems you're just wasting the court's time fighting a battle you started. I agree that their message was overreaching, but does your want to prove that entitle you to duplicating and essentially broadcasting video they produced? Even if it did your methods amount to litigious entrapment.

Re:Dear Wendy... (0)

Anonymous Coward | more than 7 years ago | (#18425845)

The clip she posted was well within the bounds of fair use.

Its amazing how many people in this story are siding with the DMCA here.

Here's a great idea (0, Troll)

Zorque (894011) | more than 7 years ago | (#18425803)

How about we constantly bash a law for being unfair, unnecessary, and convoluted, and then turn around and expect a corporation to follow it to the letter! Even better, let's put forth that it was wrong of them to disobey this law we think is unjust, and side with a woman whose only purpose in the actions was to goad the NFL into suing her. All this so that she could claim they were breaking a law: something she had already done (the same law, as a matter of fact) and should be responsible for. This is a non-story in my opinion.
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