March 18, 2007

NFL Clip Down Again

Filed under: Chilling Effects — Wendy @ 10:38 am

I promise this blog won’t become all-DMCA all the time, but as this saga gets more convoluted, it illustrates even better the problems with the law and with the various pressure groups’ copyright demands. (See the complete set of NFL-DMCA posts.)

In apparent defiance of my counter-notification, the NFL sent YouTube another takedown notice, which YouTube followed with another takedown a few days ago, giving notice to me yesterday. Now when I sent my counter-notification to the first NFL notice, on February 14, YouTube forwarded it on to the NFL per the DMCA’s specification. 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.

The DMCA way for NFL to challenge that, per 512(g)(2)(C), would be to “file[] an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material,” which they haven’t. Sending a second notification that fails to acknowledge the fair use claims instead puts NFL into the 512(f)(1) category of “knowingly materially misrepresent[ing] … that material or activity is infringing.”

If the NFL deigned to respond, I expect they would argue something like “the volume of material is so high, we can’t possibly keep track of all the claims of non-infringement. Our bots are entitled to a few mistakes.” But if they’re not able to keep track of the few counter-notifications they’ve received (the YouTube URL and page stayed the same at all times it’s been up), how can they demand that YouTube respond accurately and expeditiously to all the DMCA notifications they send, or worse, filter all content as Viacom is demanding?


  1. Sounds like we need some precedent here, no? :) Of course, YouTube probably keeps track of which clips it has taken down and restored and should be able to tell when it’s taken one down after having restored it. I guess there’s no limitation on liability if YouTube were to respond, “No, we took that one down already; now you have to sue under 512(g)(2)(C) if you would like to restrain the subscriber…”

    Comment by joe — March 18, 2007 @ 3:10 pm

  2. Wendy,

    Google supposedly have a good record responding to mail - perhaps if you contacted them via google instead of youtube you could get the video re-posted and see if the NFL ponies up…

    Comment by Babson — March 19, 2007 @ 12:20 pm

  3. It sounds like time for a counter-suit. Do you have the time and means to persue it? Do you think the EFF would help with a suit against the NFL regarding their DMCA violation?

    Personally, I would happily donate time and money to the persuit of this if someone familiar with the DMCA feels there is a valid case.

    Comment by Brad — March 19, 2007 @ 1:59 pm

  4. Could the NFL argue that they don’t see you as the infringer, that the infringer is Youtube. In that case wouldn’t Youtube have to make the claim of fair use?

    Comment by crack — March 20, 2007 @ 1:25 pm

  5. Well, you should upload the video to your server, and post it here, so then the NFL can send you a DMCA complaint directly, and then you’ll be able to sue them directly and win (and make some money in the way).

    That’d be nice, so they quit abusing the DMCA.

    Just my 2 cents, I don’t know if what I’m saying is possible…

    Comment by Juli├ín Rodriguez Orihuela — March 20, 2007 @ 3:20 pm

  6. It would seem pretty clear that Viacom’s no longer got grounds to claim a good faith belief that your clip is infringing (as required by the DMCA), but there’s a disconnect between the penalties available under 512(4)(1) and the under-penalty-of-perjury requirement in 512(c)(3)(A)(vi), leaving you in a worse position than (I would argue) you should be.

    I talk about this a bit on my blog (, scroll down to “tweak the third”).

    Comment by Ben D. Manevitz — March 20, 2007 @ 4:19 pm

  7. i don’t get it l.o.l just playin actually i didn’t read it

    Comment by moteasha — March 20, 2007 @ 4:21 pm

  8. Good for you Wendy.



    Comment by Jason — March 20, 2007 @ 4:44 pm

  9. I just saw the article about your case on Ars Technica (link below) and wanted to send a word of encouragement your way. Kudos to you for taking your time and energy to do this. I’m a supporter of the EFF, btw, and applaud your work there, as well.


    Comment by Gregg Sewell — March 20, 2007 @ 5:43 pm

  10. great work, i really appreciate that someone is taking a stand in the right direction.

    btw your article was dugg:

    Comment by scott granado — March 20, 2007 @ 7:30 pm

  11. I just wanted to say that I am glad that we have someone like you fighting on our side. I hope you keep pushing this issue, and fight it all the way.

    btw you’re on digg (you’re a celebrity now):

    Comment by Bloodymess13 — March 20, 2007 @ 8:50 pm

  12. > If the NFL deigned to respond, I expect they would argue something like “the volume of material is so high, we can’t possibly keep track of all the claims of non-infringement. Our bots are entitled to a few mistakes.”

    I think it’s actually a little more interesting than that. Either their system didn’t work, or they developed a system which didn’t take into account the need to process counter-notices. In the latter case (which is discoverable by asking what their internal procedure is) they could be found negligent, couldn’t they? (Negligent because a false takedown inflicts harm.)

    Comment by Peter — March 20, 2007 @ 9:15 pm

  13. Thank you, Wendy! The NFL has gotten too big for it’s britches and have turned into an evil empire. Keep up the fight!

    Comment by Allen — March 20, 2007 @ 10:53 pm

  14. You kick ass.

    Comment by Wow — March 21, 2007 @ 12:35 am

  15. been /.’d as well….

    its nice to see that the world has a few people who understand the laws and their rights and are willing to stand up for them! now when will the big media conglomerates figure out that they don’t own the users????

    Comment by CMDprm9t — March 21, 2007 @ 1:35 am

  16. Just in case you may be wondering:

    Why is the server slowing down?
    What happened to my bandwidth bill?

    The simple answer: your server was just slashdot’d.

    Comment by nix — March 21, 2007 @ 1:44 am

  17. fight the good fight. Its about time something was down about these over bounding statements that over assert or act to present an assertion of rights by silly companies.

    by the way I enjoyed especially the comments by Babson and Ben mavenitz who clearly don’t understand at all what they are talking about, or more importantly what you are talking about.

    Comment by Anonymous — March 21, 2007 @ 2:11 am

  18. Wendy, 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.

    Comment by Graham — March 21, 2007 @ 2:28 am

  19. Wendy, You’ve got a lot of people behind you. Push this one, push it all the way, and get a precident set for the future of digital media.

    Comment by Gai-jin — March 21, 2007 @ 2:37 am

  20. @Graham on March 21, 2007 02:28 AM

    You are missing the point.
    The DMCA has been (and will be if no-one does anything about it) abused by big company’s to scare the sh*t out of everyone.
    What Wendy is doing is *trying* to put a end to it, and let everyone see that they can’t do what they want regardless of the law.

    Comment by Mark — March 21, 2007 @ 3:25 am

  21. Way to go, Wendy!
    The DMCA is so far out of line with what this country’s founding fathers had in mind with the first Copyright act, it’s disgraceful.
    The actions of Disney and others (particularly Disney) are despicable in terms of HOW the DMCA got pushed through in the first place and it needs to be repealed.


    Comment by Don Arney — March 21, 2007 @ 4:37 am

  22. You should sue them for $10 million in damages.

    Comment by Brian M. — March 21, 2007 @ 4:52 am

  23. The problem at hand is part of a much wider problem, and the solution is way more fundamental.

    All fair laws stem from the will of God (Allah), and any man-made law that does not derive from the will of Allah is simply meant to create favoured interests, as to create legally sanctioned inequality between men.

    Since the DMCA is not backed by the will of Allah, what exactly is backing the DMCA? Only guns.

    That is why we are now analyzing and counting the guns on the other side, in order to match or over-match them. The Koran clearly states that the Almighty Allah expects every man to do his duty.

    Join the Holy War, the global jihad, against this elite of American polytheist slavers!

    Comment by Erik Poupaert — March 21, 2007 @ 5:46 am

  24. way to go !

    Comment by unity100 — March 21, 2007 @ 6:14 am

  25. Beautiful legal hack!

    Comment by Anonymous — March 21, 2007 @ 6:41 am

  26. Watch out Wendy, next you’ll be declared an unpatriotic cyber-terrorist.

    Then you’ll be rendered to some secret prison in another country; subjected to water boarding and other “no brainer” activities.

    Comment by unpatriotic — March 21, 2007 @ 8:08 am

  27. My father the lawyer, back in the 50s, when I asked him about that same notice broadcast in baseball games, said that it didn’t cost them anything to claim that. Apparently it can, today.

    Comment by Ron Hardin — March 21, 2007 @ 9:54 am

  28. Wendy, you are awesome. Don’t let the man get you down.

    Comment by Big Dave — March 21, 2007 @ 10:04 am

  29. It’s not only the NFL who is in the wrong here, but YouTube as well.

    Since it is not legal for NFL to issue a second takedown notice for an item for which they have received a fair-use counter-notice, and since YouTube is fully cognizant of the existence of the counter-notice since they delivered it, YouTube cannot legally accept this second takedown notice for the same item since that would be to accept an illegality, nor can they legally take the item in question down since they are aware that it has a fair-use claim.

    So it seems that the DMCA operational procedures are as badly broken at YouTube as they are at NFL.

    YouTube needs a small addition to their DMCA procedures: to ignore any second and subsequent requests for takedown after having delivered a counter-notice for an item and reinstated it online, on a per-item basis.

    Comment by Morgaine Dinova — March 21, 2007 @ 10:05 am

  30. Relating to wide sweeping DMCA take downs, I hope this has an affect on organizations (like Viacom) claiming ownership and removal of material they don’t even own. You have my full support.

    Comment by Chuck — March 21, 2007 @ 10:31 am

  31. While I find this kind of thing really annoying, along the lines of controlling free speech with “political correctness”…but I do understand the difficulties of protecting one’s content…
    However, there has to be a remedy for people to support their first amendment freedoms against DMCA abuses…
    So what I am wondering, now that the NFL has clearly transgressed the DMCA, can you now sue for first amendment infringement?
    That might get a case in that would show precident and establish a procedure for these kind of things in the future…

    Comment by Deoxyribonucleic A. Polypeptide — March 21, 2007 @ 12:27 pm


    I love you.


    Comment by ShoeUnited — March 21, 2007 @ 12:38 pm

  33. Awesome move. Double points if this is tightly integrated with your curriculum. NFL should place this play in their legal playbook.

    Comment by KingNezII — March 21, 2007 @ 2:19 pm

  34. Wendy, good for you. I’ve been watching that ad on NFL games for years and I’m happy to see that someone is actually challenging them on it. I mean honestly, I can’t recount the game by telling my friends? NFL is way off base.

    Comment by anonymous — March 21, 2007 @ 2:33 pm

  35. Whoa… you just made it to Being slashdotted… being Farked… same deal. DUCK! :-D

    Comment by sezzme — March 21, 2007 @ 4:27 pm

  36. Wendy,
    I am watching this with much anticipation as Australia is very much aligned with the US in regards to DMCA. Hopefully this does go to court and if so the only logical conclusion is that the NFL is in breach of the DMCA (although reading some legal findings, anything could happen over there!!!!)

    Comment by TonyS — March 21, 2007 @ 5:01 pm

  37. I think it’s awesome. I like pissing in the wind and monkeys.

    Comment by Rupert Bunzing — March 21, 2007 @ 5:01 pm

  38. Wendy, you rock, keep making the public aware of their rights and keep embarrassing the big wigs that think they own the world !!!!

    Comment by Mikey — March 21, 2007 @ 5:03 pm

  39. Major League Baseball has the same warnings, you can’t give a description of the game, you can’t mention the game, you can’t think about the game after it’s over, etc.

    Isn’t there other fair-use issues here besides the educational exception? Can’t someone summarize the game and events within it on their blog, for example? It appears that they are using the copyright to prevent people from reporting final scores, box scores, and other descriptions, for which other organizations (news? others?) probably pay for the rights to publish box scores and highlights.

    Good luck and nail ‘em to the wall. Nail MLB as well if possible.

    Comment by John Q.Public — March 21, 2007 @ 5:11 pm

  40. Wendy,

    Will you marry me?

    No seriously, we the people need folks like you.

    The content publishers are abusing DMCA as a bully pulpit.

    Fight the good fight.



    Comment by Dan the Admin — March 21, 2007 @ 6:57 pm

  41. I wonder how much the NFL will have to pony up? Seriously, for a smart lawyer there is a career here.

    Comment by Josh — March 21, 2007 @ 7:17 pm

  42. Wendy, I like to “self-educate” by reading the internet. I appreciate your efforts to educate not only your law students, but also the general public, myself included, about Copyright, Fair Use, and the DCMA. The Fair Use video clip that is a key part of this lesson is currently unavailable to me at this time. This interferes with my educational objectives, and presumably has a similar effect on countless others. If you have not already done so, please ask YouTube to restore the video clip in question, explain to them that they only have to remove an alleged copyright violation once, to revise their internal procedures to prevent future abuses like this one, and of course, to forward your Good Faith Fair Use response to the complaintant again. I hope this furthers not only my own education, but that of YouTube and all safe harbor hosts, and all alleged copyright owners.

    Thank you

    Comment by Hold their feet to the fire! — March 21, 2007 @ 8:16 pm

  43. Saw this on Fark. Way to go.

    ROck On, Wendy.

    Comment by DLPierz — March 21, 2007 @ 10:57 pm

  44. very good…

    Comment by Sas — March 22, 2007 @ 12:33 am

  45. D.M.C.A.





    (good luck ;)

    Comment by anonymous — March 22, 2007 @ 12:59 am

  46. hahah…i love this lone ranger against the big bad wolf thing! riaa sux !! dmca sux!! goooo freedom!

    Comment by ibz — March 22, 2007 @ 12:59 pm

  47. What about your counter-claim actually makes the matrial ‘clearly’ not infringing? It doesn’t seem like a misrepresentation for the NFL to disagree with your notice and to send a second takedown notice. On the other hand, it does seem like Youtube incorrectly followed the procedure necessary to keep them liability free. 512(g)(2)(C) seems to suggest they screwed that up when they obeyed the second takedown after your counter-notice.

    Your posts on this issue have been very interesting overall, and i’m curious what results. Do you plan on informing youtube of their mistake and having the clip republished? I like the idea that service providers can reach a point where they have to defend their users claims and refuse to heed repeated takedown notices.

    Comment by Anonymous — March 22, 2007 @ 4:02 pm

  48. Way to go, Professor Seltzer! Your CR class is proud.

    Comment by bc — March 22, 2007 @ 11:23 pm

  49. Sounding like some other posters, I think students in your class will learn a lot more about law by see it in action. Good for you. Good for your students. And good for us too.

    Thanks for sharing your insights with us.

    Comment by Kempton — March 23, 2007 @ 2:28 am

  50. I think youtube will kill fair use. Its a broadcaster trying to piggy back on the rights of users. The NFL no doubt sees youtube as the infringer. Youtube passing along another person’s claims doesn’t alleviate them of possible violation. This will head to court.

    Comment by crack — March 25, 2007 @ 2:16 am

  51. YouTube will newer replace cinema :-D

    Comment by Tiff-Diff — March 27, 2007 @ 3:37 am

  52. oops…
    previous link was not correct

    Comment by Tiff-Diff — March 27, 2007 @ 3:39 am

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