February 13, 2007
My First DMCA Takedown
That didn't take long. On Feb. 8, I posted to YouTube a clip taken from the Super Bowl: not the football, but the copyright warning the NFL stuck into the middle of it, wherein they tell you it's forbidden even to share "accounts of the game" without the NFL's consent.
Their copyright bot didn't seem to see the fair use in my educational excerpt, so YouTube just sent me their boilerplate takedown. Time to break out that DMCA counter-notification.
-------- Original Message --------
Subject: Video Removed: Copyright Infringement
Date: Tue, 13 Feb 2007 15:43:24 -0800 (PST)
From: DMCA Complaints
This is to notify you that we have removed or disabled access to the following
material as a result of a third-party notification by National Football League claiming
that this material is infringing:
Super Bowl Highlights: (http://www.youtube.com/watch?v=a4uC2H10uIo)
Please Note: Repeat incidents of copyright infringement will result in the deletion of
your account and all videos uploaded to that account. In order to avoid future
strikes against your account, please delete any videos to which you do not own the
rights, and refrain from uploading additional videos that infringe on the copyrights
of others. For more information about YouTube's copyright policy, please read the
"Copyright Tips" guide: http://www.youtube.com/t/howto_copyright.
If you elect to send us a counter notice, to be effective it must be a written
communication provided to our designated agent that includes substantially the
following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to
confirm these requirements):
(A) A physical or electronic signature of the subscriber.
(B) Identification of the material that has been removed or to which access has been
disabled and the location at which the material appeared before it was removed or
access to it was disabled.
(C) A statement under penalty of perjury that the subscriber has a good faith belief
that the material was removed or disabled as a result of mistake or misidentification
of the material to be removed or disabled.
(D) The subscriber's name, address, and telephone number, and a statement that
the subscriber consents to the jurisdiction of Federal District Court for the judicial
district in which the address is located, or if the subscriber's address is outside of
the United States, for any judicial district in which the service provider may be
found, and that the subscriber will accept service of process from the person who
provided notification under subsection (c)(1)(C) or an agent of such person.
Such written notice should be sent to our designated agent as follows:
1000 Cherry Ave.
San Bruno, CA 94066
Please note that under Section 512(f) of the Copyright Act, any person who
knowingly materially misrepresents that material or activity was removed or disabled
by mistake or misidentification may be subject to liability.
Here's the NFL's demand
(not very informative).
Posted by Wendy at February 13, 2007 08:55 PM
ISTR a discussion on the cni copyright listserv about the abusurdity of sportsleague copyright claims about 2 years ago.
whoever sent you that notice sounds like a jumped up little arsehole with nothing better to do; they should get a life
Hilarious! But aren't you tempting fate by republishing YouTube's copyrighted notification email? Eric.
Eric brings up an excellent point.
YouTube's notice, including the "it is illegal to resist" postscript, is protected under US copyright laws which attached at creation.
The WIPO and it's lackeys in D.C. have created an environment where corporate interests have the clear upperhand in all public discourse.
The spurious notion of "intellectual property" has now, at least within the U.S., been transformed into a weapon these new feudal lords are using to protect and expand their "intellectual fiefdoms". Their vassals, the IP attorneys, are beating up on nearly powerless web-serfs like you and I every single day.
I'm joining EFF just as soon as I get to work today. Maybe such a rising digital-guild will be able to prevent the wholesale loss of Constitutional free speech rights.
don't allow them to stop you
You may rePost the Super Bowl Highlights clip on http://www.dailymotion.com/
This is located in France, where to my knowledge they have no legal way to get it taken down like they can with utube.
then everyone can share it on their own websites as you intended to help teach how "fair use" is not being respected and abused.
Wendy, you're so punk rock now as an academic. :) So, I guess the "mistake" here is that they clearly don't understand 17 USC 107, right?
More BS that the RIAA and MPAA and Macrovision and all of the other sh*****s are trying to shove down our throats-"DRM is good for you!!" I don't think so.
How does publishing a copyright notice, taken from a broadcast, qualify as Fair Use? Fair Use is not a right, it is an exception to a rule and in order for the exception to apply you have to meet the prongs of the test. The main requirement of the test is that your action has a strong artistic or education purpose that outweighs the copyright holder's interest in the content. What is so educational about redistributing a copyright notice? You can complain about this all you want but if this silly issue ever went before a judge than you would lose and it wouldn't have anything to do with corruption or bought politicians. The simple truth is that the Fair Use exception is nowhere near as broad as most people think. It is a narrow exception that only applies when you have an important message behind your actions.
The educational purpose exception rarely applies outside of a classroom. Did you know that the Teach Act (codified under Fair Use section) explicitly states that even teachers cannot distribute educational materials to their students on a local network (within the school only) unless they include safeguards to prevent further distribution, and they absolutely cannot distribute that content to their students using a global network (like Youtube)?
I agree with qwerty. This seems like a vain and pointless experiment that proves nothing. Posting that content isn't educational and it isn't fair use, so what's the point of casting this as that type of issue? I have yet to hear a really good argument for abolishing DRM that doesn't sound like people just whining about how they can't have what they want all the time. How come so many clearly intelligent bloggers like you don't understand the value of protecting intellectual property? If so many people despise studios, broadcasters, and record labels, why are you asking for unrestricted access to their products rather than just not supporting them at all?
(Ooh, on boingboing.net!)
"artistic or education purpose that outweighs the copyright holder's interest in the content"
I'd say the posting of an anti-posting notice has a clear, amusing, and high "art" value, and is also "educational" in letting people like me (who have no interest in this Large Bowl spoken of, and would otherwise not hear about such a thing) about the ridiculousness of the NFL and of the DCMA biz.
Also, the notice itself says "accounts of the game" (I wonder who won? Oops! Don't answer that!) and clearly isn't concerned with accounts of the notice itself.
P.s. do you think RIAA or MPAA or someone with vested economic DRM interests would employ people like "qwerty" or "space" to try and engage blog-culture in an attempt to alter the appearance of the anti-DRM zeitgeist?
All broadcasts are copyrighted and virtually all contain copyright notices at some point during their broadcast. There is nothing ridiculous about such notices and there is nothing educational about distributing even that small portion of the broadcast without permission. Also, copyright law protects all of a work whether a copyright warning is there or not, and regardless of what the copyright warning says. The point is to give notice of a copyright to deter infringement, not to inform the end user of the entire scope of that copyright. So the fact that the notice discusses, "accounts of the game" doesn't change the fact that the entire broadcast, including the notice itself, is what is protected by the copyright.
As minor as your infraction is, there is simply no legal justification for it. This most certainly does not qualify as Fair Use. This doesn't mean you are some kind of pirate or someone who deserves to be sued. It just means that you should not be suprised when a 3rd party that YOU involved stops distributing the infringing material for you, and most importantly it means that you should not publicly moan about it without doing some basic research first. If you feel that your actions are so educational and artistically important than you should consult an attorney who specializes in intellectual property.
The fact that you assume anyone with an opinion contrary to yours must be working for the RIAA or MPAA shows that you are very closed minded about the whole RIAA/MPAA copyright enforcement debate, as is most of the online community. People automatically side against the MPAA and RIAA regardless of the issue. If the MPAA ever had to sue the RIAA I think people's heads would just explode. Its possible to be open minded, objective, unbiased and FAIR and yet still believe that the MPAA and the RIAA have a right to enforce their respective copyrights.
> The fact that you assume anyone with an opinion
> contrary to yours must be working for the RIAA or
> MPAA shows that you are very closed minded about
> the whole RIAA/MPAA copyright enforcement debate,
> as is most of the online community.
So, then, answer the question ... are you or aren't you?
I have no affiliation with the RIAA, MPAA, or any other industry union or with the NFL (who is really the only interested party here.) I am a prosecutor and former intellectual property attorney. I have done a substantial amount of pro bono work defending individuals who have been sued by the MPAA and RIAA for distributing copyrighted content via P2P. I have no love for these organizations, but I do have a love and respect for the law. I call 'em as I see 'em and in this case there is no legal argument to be made. It seems the screen grab was posted for no other reason than to try to get caught. If the poster did this to get standing to sue on a bonified legal issue than it would be admirable. But it seems the point was only to have something to blog about, and there's no legal substance to the argument. I don't see the point.
Some of these comments seem to have gotten off-topic. This scenario isn't about DRM or conspiracy, it's about the public's right to discuss copyrighted materials without facing overreaching copyright claims.
I believe the posting is fair use. 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 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.
The counter-notification is my first step to see what YouTube does next.
Bloggers can debate fair use til the cows come home. We have to remember that, while there are fair use guidelines, there's no true across-the-board legal definition. You can debate how a court would rule on fair use, but the reality is that it comes down to a a case by case ruling rendered by a specific judge in a specific courtroom on a specific case. So, you -- and, in this case YouTube -- would need to be willing to spend thousands of dollars to get to court to even have that discussion. YouTube, wisely, is not going to willing to go to court to prove your point against a legal-deep-pockets like the NFL. Why would they? Neither YouTube or parent Google has a vested interest in making your point. So they'll remove your posting and any other postings they are challenged on. It's kind of a "duh" for them. Appealing for them to re-think their removal of the posting is an exercise in academic silliness.
If you're trying to make a point, set fair use precedent, etc., you'd need to set up your own website and post all kinds of fair use challenges. Go to court, let the courts and rule on YOUR use of it, jeopardize your own or like-minded investors' pockets. That's the only way these sorts of fair use issues will get a day in court.
If your purpose was simply to create some energetic blogging re: fair use, then I guess you've achieved that.
While we're all being paranoid and testy here, I'll point out that I find it hard to believe that a "prosecutor and former intellectual property attorney" thinks that bonafide is spelled bonified. Real lawyers know their latin. They also know that the meaning of fair use is subject to much debate, It's far from being as cut and dried as has been suggested here.
My guess? A clever college troll getting his rocks off. We'll never know, of course.
I am in fact an attorney despite mispelling a single word on an informal blog. You are free to check my credentials if you really want to know. My full name is Adam Poole and I am licensed in Texas. My Bar card # is 24042968. I was licensed in 2005 and worked for a year at an intellectual property firm in San Antonio before becoming a prosecutor in Galveston. While in law school the focus of my studies was on intellectual property and I interned at that IP firm I mentioned 2 yrs in law school...so I worked there a total of 3 years.
Fair Use is indeed an ad hoc legal application but there are still cut and dry rules that apply in all cases. One of those rules is that you must at least marginally pass the first damn prong of the test and that is that your purpose and character of use be for [b]some[/b] educational or artistic purpose. Specifically, the character is judged by, and ONLY by, what is ADDED or ALTERED from the original work. It doesn't appear that anything at all has been added or altered, this is simply a reposting of an excert. This use literally cannot be considered transformative, despite what Wendy argues, because nothing was changed. There was no educational message. There was no artistic expression. This was an attempt to see if a harmless, insignificant, and purely technical copyright infringement would still be pursued. It was. And now it is clear that Wendy is not going to attempt to make any kind of real effort to fight this issue and the NFL's legal dept. clearly knew this would happen. This doesn't make Wendy some sort of victim, it just means she got called on her bluff.
Wendy states that her use is analogous to quoting from a literary work. The Committee Notes as well as numerous Sup. Ct. and other appellate ct. cases all hold that audio-visual works are granted far more protection than literary works. More importantly, even quotations from literary works require SOME attempt to add to or interpret that quote in order for the quotation to qualify as Fair Use.
I referred the readers of this blog to the Teach Act previously. As I stated it is codified under section 107. Please before there are any more arguments about this just read these sections. These sections lay out the rules for teachers under Fair Use. These are in fact cut and dry rules. No ad hoc interpretation. No trying and seeing how things play out in court. These are the guidelines given by the Legislature for individuals who are indisputedly using copyrighted works for educational purposes, which is even more than is being done in Wendy's case. Per those statutes even a teacher could not have posted an excert online for his/her students, even if it were undisputed that it was done for educational purposes. Based on these statutes and the above mentioned reasoning, I personally do not see any merit to a Fair Use argument here. Now this is Wendy's fight and she is free to pursue it all she wants, and blog about it all she wants. My point is that this is presented as some kind of corporate misuse of copyright law. Some kind of violation of rights. Something that everyone but the NFL can plainly see is Fair Use. Well I am telling you that you are mistaken.
This is interesting. Both Wendy and qwerty, two trained lawyers, believe the application of section 107 to Wendy's stunt to be cut and dried, yet they reach opposite conclusions. This alone suggests that section 107 is not cut and dried. Or, it could be the case that one of them is misapplying it. The only way to decide whose position is stronger is for both of them to actually cite some authority. Qwerty has alluded to some, but not actually cited it. As far as the actual text of section 107 goes (available at http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000107----000-.html), it doesn't support his claim that the mere reposting part of a work without comment or alteration is categorically excluded from fair use. The statute doesn't even define fair use; it simply gives a non exclusive set of factors to be considered in determining whether a particular work qualifies. And what the statute does say sounds like it goes against his position: "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." Well, Wendy used the copyrighted work by reproduction for purposes of teaching and research. The statute appears to focus on the purpose of the reproduction, not whether the use was transformative. So I guess the ball is in qwerty's court to cite some additional authority that would show this is clearly not fair use.
I'm not a lawyer, but as an academic librarian I'm quite familiar with fair use and the TEACH Act. I just want to point out that TEACH is not "codified under Section 107 (i.e., the fair use limitation on copyright), as has been stated here. TEACH was actually a revision of Sec. 110(2), and, among other things, it was passed by Congress to broaden the scope of works allowed in modern digital distance ed. (I believe that TEACH also slightly amended Sec. 112.)
It's true that TEACH imposes numerous requirements, but assuming an instructor and institution meet those requirements, TEACH does allow the transmission of "reasonable and limited portions" of audiovisual works. Nearly every higher ed. institution that's worth its salt would certainly consider a 30-sec. clip from an hours-long broadcast a reasonable and limited portion.
Not only is TEACH not codified under Sec. 107, but the statute specifically says that other limitations on copyright, such as fair use (which is anything BUT "cut & dried"), are not affected by the provisions of TEACH.
While it's hard to argue with the expertise of a guy who spent almost a year as an IP attorney (oh, I forgot, there were a couple of years in law school), someone who mis-states the essence of fair use doesn't have much credibility. (Oh, and the Teach Act is not codified in section 107. It is codified in Section 110, and is a separate issue, independent of Fair Use.) Stick to prosecuting, "qwerty."
Fair use does not have "prongs." It isn't a 4-part "test" which must be satisfied. Rather, those are non-exclusive factors to consider, and there are no "cut and dry rules." The statement that the "first prong" requires that "your purpose and character of use be for [b]some[/b] educational or artistic purpose." Aside from the confusion over whether these are requirements, that doesn't even correctly state what the first factor says. ("Artistic" isn't in there at all, and commercial use can still be fair use.)
Of the factors, the most important by far is the fourth: effect of the use on the market value of the original work. Here, of course, there is none whatsoever; the NFL isn't going to lose a cent over this. (The third also weighs strongly in favor of Prof. Seltzer's use; she used a few seconds from a multi-hour work.)
Someone suggested that the ball is now in my court and that I need to put forth some legal citations to support what I have said. That is fine but I'll need to find the time. Hopefully this weekend.
But in the meantime, since I am being sufficiently attacked, on an anonymous blog, I'll respond generally for now.
I was mistaken about the Teach Act being codified in section 107. It is mentioned extensively in the Committee Notes of section 107 and I was under the impression it also amended this section. As far as rkd's statement, I refer you to my first comments about the Teach Act. 110 2(d) covers the digital transmission of works. It places several restrictions, namely that the transmission be made solely for the students enrolled in the class and, more importantly, that sufficient technological measures be put in place to limit access to only these individuals who are part of your controlled environment. The committee notes and case-law (I'll supplement later) hold that, at a minimum, this means there must be some sort of limited registration or sign-in system so that the transmission is not open to anyone. We're talking about Youtube which is free and open to anyone. As I said, a teacher could not even do this under the Teach Act when the work is clearly for educational use.
David Nieporent: I'm not sure what your argument is exactly. Fair Use is indeed a four prong test. That's the literal term that the Supreme Court uses for it anyway, and I'm not sure I've seen this Court describe it as anything else. It is a balancing test so all the prongs are considered but these are in fact exclusive prongs in that all considerations are lumped into one of these four factors; purpose and character of use, nature of copyrighted work, substantiality of use, and effect of use.
I have never said that Fair Use is cut and dry, in fact I have said multiple times that it is exactly the opposite. I have been very clear in calling it an ad hoc legal principle. Yet how can it be that issues of Fair Use are still ruled on summarily each and every day? The answer should be clear. Even with the broadest of legal principles there are bright line rules and guidelines that have come down from our high court(s). Based on these, yes there are certain aspects that make even Fair Use decisions cut and dry sometimes when given certain facts. I am not saying that this is the case here. What I am saying is that I have yet to actually hear it articulated WHAT educational teaching was intended by posting this clip, much less HOW the posting of the unchanged excert alone, with no commentary (was there commentary? I don't think we've been told,)was supposed to present this teaching.
The bottom line here is that Fair Use is an affirmative defense that only applies when you actually have a reason for using the copyrighted work. As best as I can tell, Ms. Seltzer's sole purpose for using the copyrighted work was because she thought it would be ironic for copyright law to be used to prevent the transmission of a copyright warning. I just don't even understand how this is supposed to be educational.
I will be more than happy to provide quotations and case-law to support my contention that you must meet a minimum threshold on the first prong of the Fair Use test, in that you must show some purpose for your use...be it for artistic expression (parody or satire, commentary or critisicm) or educational use (news, teaching, research, etc..) Like I said, maybe this weekend.
Qwerty said: "Fair Use is indeed an ad hoc legal application but there are still cut and dry rules that apply in all cases. One of those rules is that you must at least marginally pass the first damn prong of the test and that is that your purpose and character of use be for [b]some[/b] educational or artistic purpose. Specifically, the character is judged by, and ONLY by, what is ADDED or ALTERED from the original work. It doesn't appear that anything at all has been added or altered, this is simply a reposting of an excert. This use literally cannot be considered transformative, despite what Wendy argues, because nothing was changed. There was no educational message. There was no artistic expression."
Given this view, how do you explain the outcome in Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417 (1984)? The Court said. "we must conclude that this record amply supports the District Court's conclusion that home time-shifting is fair use." Id. at 455. No guaranteed educational purpose (though some of the programs may be educational). No artistic purpose. No transformation of the work. Just a desire to watch a program at a different time, just as it originally appeared (except maybe without the commercials).
Qwerty also said, "Fair Use is indeed a four prong test. That's the literal term that the Supreme Court uses for it anyway, and I'm not sure I've seen this Court describe it as anything else. It is a balancing test so all the prongs are considered but these are in fact exclusive prongs in that all considerations are lumped into one of these four factors; purpose and character of use, nature of copyrighted work, substantiality of use, and effect of use."
Here are some counter examples on the exclusivity point:
"In 17 U.S.C. § 107 (1988 ed.), Congress provided examples of fair use, e.g., copying 'for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,' and listed four NON-EXCLUSIVE factors that a court must consider in determining whether an unauthorized use is not infringing[.]" Stewart v. Abend, 495 U.S. 207, 236-37 (1990) (emphasis added).
"As we have noted, the four statutory fair use factors are NON-EXCLUSIVE and serve only as a guide to promote the purposes underlying the copyright law." Castle Rock Entertainment v. Carol Publ'g Group, 150 F.3d 132, 146 (2d Cir. 1998) (emphasis added).
"While the four statutory factors are NON-EXCLUSIVE, we do not believe that the various other factors discussed by the parties merit discussion in light of our agreement with the District Court that all of the statutory factors favor TPP." Twin Peaks Prods. v. Publ'ns Int'l, Ltd., 996 F.2d 1366, 1377-78 (2d Cir. 1993).
I don't think the Teach Act is relevant here at all, because it provides a safe harbor in addition to fair use principles, not a limitation on their pre-existing scope. But if there is authority saying otherwise I'd be grateful to see it.
qwerty: Thanks for offering to look up some authority to help shed light on the discussion. If I'm understanding you correctly, you're not disputing that Wendy wins on fair use factors 3 and 4. Rather, you are asserting that she has failed to make any colorable showing that would satisfy factor 1, and that this failure is sufficient to place her actions outside of fair use. This seems contrary to the notion of fair use as a balancing test--normally in such tests, you can lose on one factor but still win if the others cut your way. Moreover, it would seem that at the very least you have to agree that the "character" of her use was non-commercial. Why is that not sufficient to satisfy the first factor given that there is no dispute that this use does not harm the market for the copyrighted work?
You also seem to be assuming that for use of an excerpt to be "educational" the reproduction must be accompanied by some commentary on the content of the excerpt itself. Even assuming that this is so (and this is one of the things I'd like to see authority for), why isn't it satisfied by the blog post, which did comment on the overreaching nature of the copyright notice?
In addition to Bill's quotes, I'd suggest Ty, Inc. v. Publications International Ltd., 292 F.3d 512 (7th Cir. 2002). Two relevant excerpts:
"(Notice that the purposes listed are illustrative rather than comprehensive. Campbell v. Acuff-Rose Music, Inc., supra, 510 U.S. at 577-78.) In deciding whether a particular use is fair, the "factors to be considered shall include"--and notice again that the listing is ILLUSTRATIVE RATHER THAN EXHAUSTIVE; Congress "intended that courts continue the common law tradition of fair use adjudication " and [section 107] "permits and requires courts to avoid rigid application of the copyright statute, when, on occasion, it would stifle the very creativity which that law is designed to foster,"
"The important point is simply that, as the Supreme Court made clear not only in Campbell but also in Sony Corp. v. Universal City Studios, supra, 464 U.S. at 448-49 n. 31, THE FOUR FACTORS ARE A CHECKLIST OF THINGS TO BE CONSIDERED RATHER THAN A FORMULA FOR DECISION; and likewise the list of statutory purposes. See also Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., supra, 150 F.3d at 141; Ringgold v. Black Entertainment Televison, Inc., 126 F.3d 70, 78 and n. 9 (2d Cir. 1997). Because the factors and purposes are not exhaustive, Ty can get nowhere in defending the judgment by arguing that some or even all of them lean against the defense of fair use."
qwerty just got pawned, or whatever it is the kids are saying these days.
What is a "bonified legal issue"?
Are you an attorney?
If you are, how come you don't know how to spell "bona fide"?
Please do not attempt to provide legal advice unless you are licensed to practice law.
>>>>If you are, how come you don't know how to spell "bona fide"?
Please do not attempt to provide legal advice unless you are licensed to practice law. <<<<
Now that was a MAJOR ownage!
...maybe qwerty's right and the current legal framework on copyright is stupid and repressive.
"space" way up there asks why no one's recognizing "the value of protecting intellectual property": but this essay - http://levine.sscnet.ucla.edu/general/intellectual/against.htm - suggests that creativity and the circulation of ideas generally are in fact enhanced by a more free exchange of ideas. Not to mention, of course, that the notion that one professor's use of 30 seconds of an NFL broadcast - even on YouTube - could possibly in any way diminish the value of NFL's proprietary rights over its broadcasts. What, the millions who watch football are instead going to watch only the "pirated" YouTube copyright notice and deprive the NFL of billions of dollars? If it's somehow legally necessary for the NFL to attack YouTube and Prof. Seltzer here, in order to retain its copyrights, something's seriously wrong with the copyright laws.
What is a "bonified legal issue"?
Are you an attorney?
Hahahahah....Qwerty sucks the bog ONE!!!!!
My name is Jack Haas, and I am Qwerty-you have something to say-email me at email@example.com-OK, I am one tough dude though.
Jack-dont you mean your name is Jack Ass? Hahahaha