February 8, 2007

My First YouTube: Super Bowl Highlights or Lowlights

Filed under: Chilling Effects, open — Wendy @ 10:04 am

I snipped the copyright warning out of the weekend’s Super Bowl broadcast as an example for my copyright class of how far copyright claimants exaggerate their rights.

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

Let’s see whether the video, clear fair use, gets flagged by a copyright bot.

Update: My First DMCA Takedown, a mere 5 days later.

17 Comments

  1. can I have a copy of the copyright warning for my web site?

    E.

    Comment by Eric — February 15, 2007 @ 9:46 am

  2. that’s something I’ve personally wanted to do for ages :) Excellent test.

    Comment by Ryan — February 16, 2007 @ 3:15 pm

  3. Wendy,

    Interesting experiment. A question, though: Are you sure that the clip was “clear fair use”? I don’t teach or write in the area of copyright, so I’m interested in your authority for that.

    Comment by Orin Kerr — February 21, 2007 @ 12:30 pm

  4. Hi Orin,
    Here’s the fair use analysis I posted in another thread: I “quoted” the copyright warning the NFL broadcast, in the medium in which they broadcast it. If it were a paragraph of text at the front of a book, there’s [almost] no question it would be fair, so why not 30 seconds from an hours-long telecast?

    On the four factors of the statute, this is 1) transformative from the original purpose of the broadcast and used for non-profit educational purposes; 2) an excerpt from a factual account; 3) a short clip including no key moments from the game; and 4) utterly without effect on any NFL market. I can’t see how this is anything but fair, even if my video tools left a few seconds of football after the voiceover warning.

    I felt secure enough in this analysis to swear a “good faith belief” the takedown was mistaken.

    Comment by Wendy — February 21, 2007 @ 1:00 pm

  5. “This video is no longer available.”

    Comment by Larry Yudelson — February 21, 2007 @ 1:02 pm

  6. Here’s a question for Wendy: Am I correct in understanding that your YouTube posting was entitled “Superbowl Highlights”? If so, why did you name it that, rather than, say, “NFL copyright notice”? If your point was to illustrate that copyright holders are overreaching, I think you undermined your case somewhat by posting something with a title that sounds like run of the mill infringement. I suppose you can say that it was NFL’s burden prior to sending a take down notice to make a good faith determination that your use of the clip was not “authorized by . . . the law.” Which arguably means they were required to watch your clip in its entirety and perform an analysis under section 107 prior to sending their notice. But is that really a fair burden to put on copyright holders trying to police a site like YouTUbe for infringing material? Isn’t it incumbent on fair users who want to avoid getting mistaken take down notices to at least make some effort to make the nature of their use readily apparent?

    Comment by chris newman — February 22, 2007 @ 2:53 am

  7. Prof. Seltzer, could you estimate what percentage of the clip was the copyright notice vs. what percentage was the game footage? Do you feel that that would have any influence on the claim to fair use?

    Comment by Jake — February 23, 2007 @ 3:52 am

  8. Chris: I titled the post “Superbowl Highlights” to be ironic, and because I thought it would be interesting for others searching YouTube to come across the copyright warning. It shouldn’t be sufficient for a copyright claimant to look only at the title and one frame of video to make a good-faith claim of copyright infringement.

    Comment by Wendy — February 24, 2007 @ 4:17 am

  9. I’ll be more clear - two thirds of the clip was game footage, as were all three of the thumbnials that you would see if you searched for it. The title was “Super Bowl Highlights”, and there was no indication that it was intended for educational use (e.g. reference to a course, username “professor something-or-other”).

    While I understand that you were trying to upload something that would draw a DMCA counternotification and were successful in that, I think that your descriptions of your actions (and the “clear fair use”) statements are creating materially false impressions in the minds of your readers.

    Comment by Jake — February 24, 2007 @ 3:53 pm

  10. “I think that your descriptions of your actions (and the “clear fair use”) statements are creating materially false impressions in the minds of your readers.”

    Not at all. It is clearly fair use. While fair use involves a balancing test, a court would have to be insane to find this particular use not to fall within the intended scope of fair use. I’m sure if you went through and performed a legal analysis under the four factors previously mentioned, you would come to the same conclusion. You have done this right? Before “creating materially false impressions in the minds” of those reading your comments? In fact, the description of “Super Bowl Highlights” would lend more weight for the argument FOR fair use than against it. As for the 2/3 1/3 argument, it wouldn’t hold much weight. The notice itself is irrelevant without some kind of context which the football footage provides. Perhaps you have just been brainwashed by the controllers of today’s media into thinking their rights always supersede yours? Ask yourself this, a simple and crude layman fair use test: “Would the holder ever consent to the use in question, would they want to do it themselves or could it serve as a substitute?” If not, you may have a good situation for fair use. Because the ultimate effect of this clip is to be critical of the NFL and point out their exaggeration of their rights under Title 17, I’d say no to all three.

    Comment by D — March 7, 2007 @ 9:10 pm

  11. Hello. I fall in love with your blog at first time I saw it! Thanks a lot.

    Comment by Den — March 12, 2007 @ 5:14 pm

  12. YOU DONT FUCK WITH THE NFL. NOBODY ON THE INTERNET IS AS DIE HARD MOTHERFUCKING _INSANE_ AS US ABOUT ENFORCING COPYRIGHT. WE WILL HUNT YOU DOWN AND BLUDGEON YOU IN THE STREET IF YOU FUCK WITH OUR CONTENT, _EOM_

    PS, DONT EVEN SAY OUR NAME, OR WE WILL PUNCH YOUR GRANDMAS FACE IN.

    Comment by TheNFL — March 14, 2007 @ 1:47 am

  13. Wendy-

    I applaud the exercise and I am eager to hear the outcome. The stifling of copyright will only have negative results in the long term.

    I believe that the long term solution is to remove the media companies from the equation. Artists need an alternative to signing away their rights for pennies on the dollar. As long as the media companies control the content, they will have the most leverage.

    Comment by Matt Pavlovich — March 20, 2007 @ 5:19 pm

  14. Wendy,
    Doesn’t the educational fair use claim required limited distribution of the material in question?
    By posting to YouTube haven’t you lost control of distribution?

    I ask because I’ve developed a number of web pages of audio demonstrations to which I have not given out the URL because of potential copyright problems. When I use these in class or at conferences (presentations or demo sessions) I clearly can invoke educational fair use, but I thought that if I put it out on a server without access control I would not be able to exercise educational fair use exemption.

    What do you think?

    Ralph

    Comment by Ralph Muehleisen — March 21, 2007 @ 2:08 pm

  15. Seems to me that a clip title Superbowl Highlights and posted on YouTube is being used for commercial purposes; YouTube is in the business of selling advertisements, not educating the public. Would the act of broadcasting the clip on network television constitute Fair Use?

    Comment by Dave — March 21, 2007 @ 9:49 pm

  16. Now, come on TheNFL, tell us your feelings. Honest.

    Comment by Anonymous — March 22, 2007 @ 8:37 pm

  17. Responding to Ralph, fair use is not limited to educational purposes. Wendy is using this clip to make a statement about the content, this is perfectly legitimate under most fair use guidelines.

    Comment by Shawn Van Every — April 4, 2007 @ 11:32 pm

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