April 5, 2007

NFL: Second Down and Goal?

Filed under: Chilling Effects — Wendy @ 8:24 am

Today, 12 business days after I re-sent my DMCA counter-notification, YouTube sent notice that they had restored my Super Bowl excerpt. Catch it while you can, because I’m not holding my breath that it will stay online this time either.

The chronology so far:

By my count, that’s 17 days up, 38 days down, not counting “technical problems” that prevented access to the video on some days when it was not sidelined by a notification.

In the first takedown
first DMCA takedown NFL sent YouTube in February, shortly after the Super Bowl, my video of the copyright warning was among 162 URLs listed. After YouTube re-posted my video, NFL’s second DMCA notice singled out just one video, the one for which I had counter-notified on fair use grounds. If there was any excuse that the first claim was just a bot’s overactive pattern-matching — an excuse the NFL doesn’t rely on in its response on the Wall Street Journal’s Law Blog — that excuse evaporated by the time I counter-notified.

Rather, NFL Spokesman Brian McCarthy argues,

We are entitled to disagree, in good faith, with her asserted defense, absent a court decision.

(3) We have valid grounds to disagree with the professor’s fair use argument. Had she simply used the clip in her classroom, before students, she might have had a stronger argument that the context was educational and entitled to fair use deference. But it was posted without any of this context, and in a manner available for anyone in the world to see, not just her students.

I think their fair use analysis is wrong as a matter of law, and therefore it was “knowingly materially misrepresenting” to claim that the clip infringed after getting notification of the clip’s content. I’m entitled to share this type of educational fair use with more than the students in my classroom. (I’m not trying to rely on the TEACH Act with its crabbed DRM requirements.) I post my syllabus and teaching slides online for anyone to see, and wanted to post this discussion similarly.

On the fair use factors, I think I’m in good shape: My use is for nonprofit educational purposes; the copyright in the telecast is thin; the portion of football that follows the copyright warning is a minute portion of the whole, with no significant action or commentary, useful to show people what it was the NFL claimed its copyright covered; and the effect on the market for or value of the work is non-existent.

Too bad the U.S.’s WTO non-compliant gambling law prevents us from wagering on what will happen next…

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