Comments on: Exclusive Rights: The Wrong Goal for NFL http://wendy.seltzer.org/blog/archives/2007/07/02/exclusive_rights_the_wrong_goal_for_nfl.html Musings of a techie lawyer Tue, 07 Oct 2008 04:45:21 +0000 http://wordpress.org/?v=2.7-bleeding By: Jeff http://wendy.seltzer.org/blog/archives/2007/07/02/exclusive_rights_the_wrong_goal_for_nfl.html#comment-1038 Jeff Wed, 19 Sep 2007 01:30:32 +0000 http://wendy.seltzer.org/wordpress/?p=432#comment-1038 Then perhaps it is time that people stop following the NFL teams. Hell for that matter stop following sports altogether. These pussies get payed millions to play a silly ass game and then they can't even win fairly ... they have to take performance enhancing drugs. Then perhaps it is time that people stop following the NFL teams. Hell for that matter stop following sports altogether. These pussies get payed millions to play a silly ass game and then they can’t even win fairly … they have to take performance enhancing drugs.

]]> By: avsa adasi http://wendy.seltzer.org/blog/archives/2007/07/02/exclusive_rights_the_wrong_goal_for_nfl.html#comment-731 avsa adasi Wed, 08 Aug 2007 21:43:55 +0000 http://wendy.seltzer.org/wordpress/?p=432#comment-731 thank you thank you

]]> By: Jesse Weinstein http://wendy.seltzer.org/blog/archives/2007/07/02/exclusive_rights_the_wrong_goal_for_nfl.html#comment-729 Jesse Weinstein Wed, 01 Aug 2007 22:58:23 +0000 http://wendy.seltzer.org/wordpress/?p=432#comment-729 (As I am unable to post this comment on the correct entry, 2007/04/05/nfl_second_down_and_goal.html , I'm posting it here. I hope this is acceptable.) What is the next step? According to §512(f), Emma Rutherford (the person who signed the NFL's 2nd DMCA notification) is liable for any damages Wendy Seltzer or YouTube suffered due to the removal of the clip if Ms. Rutherford "knowingly materially misrepresent"ed that the clip was "infringing". Wendy claims that the 2nd DMCA notification contains such a material misrepresentation. I was not able to find a definition of "material misrepresentation" on the web, but Google Books came through, finding me the book: Rossini, C. (1998). English as a legal language. London: Kluwer Law International. , p. 31, which states: "In order for a misrepresentation to be material, ... it must be of such relevance that it would have influenced a (reasonable) person in the plaintiff's position with respect to any business dealings, or it must have been related to something which the defendant knew to be considered important by the plaintiff." It's hard for me to see what, in the 2nd DMCA notification, would fall under that -- but I certainly may have missed it. Maybe "The NFLs copyrights are infringed by the above material" or "I have a good faith belief that none of the materials ... have been authorized by ... the law." -- but it's not clear who would have been "influenced" by the knowledge that those statements are false, even if they are false. It does seem as though the law is written such that there is little penalty for sending repeated DMCA notifications, unless there is some other area that would create a large, easily provable tort for causing the removal of the clip. Is it possible to send a counter-notification *before* a notification is sent, and ask for it to be kept on file? It doesn't seem so, as one of the requirements of the counter-notification is a statement of belief that the notification was in error, and one can't believe something is in error before it's said. Hm. I suppose this is a general point about the lack of legal remedies for making false statements regarding ownership of copyrighted works, or the rights granted thereby. References: <a href="http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000512----000-.html" rel="nofollow">http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000512----000-.html</a> <a href="http://wendy.seltzer.org/media/NFLAntipiracy03_2007.03.12.txt" rel="nofollow">http://wendy.seltzer.org/media/NFLAntipiracy03_2007.03.12.txt</a> (As I am unable to post this comment on the correct entry, 2007/04/05/nfl_second_down_and_goal.html , I’m posting it here. I hope this is acceptable.)

What is the next step? According to §512(f), Emma Rutherford (the person who signed the NFL’s 2nd DMCA notification) is liable for any damages Wendy Seltzer or YouTube suffered due to the removal of the clip if Ms. Rutherford “knowingly materially misrepresent”ed that the clip was “infringing”.

Wendy claims that the 2nd DMCA notification contains such a material misrepresentation. I was not able to find a definition of “material misrepresentation” on the web, but Google Books came through, finding me the book: Rossini, C. (1998). English as a legal language. London: Kluwer Law International. , p. 31, which states: “In order for a misrepresentation to be material, … it must be of such relevance that it would have influenced a (reasonable) person in the plaintiff’s position with respect to any business dealings, or it must have been related to something which the defendant knew to be considered important by the plaintiff.”

It’s hard for me to see what, in the 2nd DMCA notification, would fall under that — but I certainly may have missed it. Maybe “The NFLs copyrights are infringed by the above material” or “I have a good faith belief that none of the materials … have been authorized by … the law.” — but it’s not clear who would have been “influenced” by the knowledge that those statements are false, even if they are false.

It does seem as though the law is written such that there is little penalty for sending repeated DMCA notifications, unless there is some other area that would create a large, easily provable tort for causing the removal of the clip.

Is it possible to send a counter-notification *before* a notification is sent, and ask for it to be kept on file? It doesn’t seem so, as one of the requirements of the counter-notification is a statement of belief that the notification was in error, and one can’t believe something is in error before it’s said.

Hm. I suppose this is a general point about the lack of legal remedies for making false statements regarding ownership of copyrighted works, or the rights granted thereby.

References:

http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000512—-000-.html
http://wendy.seltzer.org/media/NFLAntipiracy03_2007.03.12.txt

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