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NFL Caught Abusing the DMCA
Posted by
kdawson
on Tue Mar 20, 2007 11:14 PM
from the poorly-chosen-victim dept.
from the poorly-chosen-victim dept.
Implied Oral Consent writes "You know how the NFL puts up those notices before every game saying 'This telecast is copyrighted by the NFL for the private use of our audience, and any other use of this telecast or of any pictures, descriptions or accounts of the game without the NFL's consent is prohibited?' Well, Ars Technica is reporting that Wendy Seltzer thought that that was over-reaching and posted a video of the notice on YouTube. Predictably, the NFL filed a DMCA Take Down notice on the clip. But Ms. Seltzer knows her rights, so she filed a DMCA Counter Notice. This is when the NFL violated the DMCA, by filing another Take Down notice instead of taking the issue to court — their only legitimate option, according to the DMCA. Unfortunately for the NFL, Ms. Seltzer is a law professor, an EFF lawyer, and the founder of Chilling Effects. Oops!"
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Whistle (Score:4, Funny)
"10 yards for Illegal Procedure by the offense, replay first down"
Just ridiculous notice to begin with (Score:5, Insightful)
"Hey Bob, see the big game last night?"
"Yeah Gary, I sure did... it was awesome!"
"What did you think about the touchdown in the..."
"SSSSSSHHHHH! What are you doing Gary? You can't discuss the game without prior consent... just hang on a sec."
Ring ring... ring ring...
*Welcome to the NFL DMCA Hotline, your call is important to us, you are currently number 13445 in the queue*.
"Oh F*ck that, let's talk about world political events"
Re:Just ridiculous notice to begin with (Score:5, Informative)
They're not saying you can't describe it. They're saying you can't use their description of it. In other words, the announcer's words. A very similar "notice" has been used for decades by baseball broadcasters. So similar, in fact, that there might be copyright issues ;-)
Parent
Re:Just ridiculous notice to begin with (Score:5, Informative)
"Wow, Big Bobby Mc Bob Bob (can you tell I haven't seen any NFL broadcasts?) really went to town on the aquatically themed team's linebackers last night didn't he? What was the term he used?"
"I wouldn't like to say Norm, for fear of the NFL slapping a DMCA notice on my flabby arse."
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Re:Just ridiculous notice to begin with (Score:5, Funny)
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Re:Just ridiculous notice to begin with (Score:5, Informative)
They tried to shutdown unauthorized fantasy football activities on the basis that the events that took place in the game are covered by their copyright and that all player stats are the results of those copyrighted events.
LK
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Re:Just ridiculous notice to begin with (Score:5, Informative)
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Re:Just ridiculous notice to begin with (Score:5, Interesting)
I mean trying to stop people DESCRIBING an event...
The National Basketball Association already tried that and lost. NBA sued a cellular service that sent out play by play score updates. (National Basketball Ass'n v. Motorola, Inc., 105 F.3d 841 (2d Cir.))
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Re:Just ridiculous notice to begin with (Score:5, Interesting)
Actually, this sort of battle has already been fought in Australia (it didn't make it to the courtroom though).
I refer to "NRL versus Radio 2UE" from about 2003 (I think). The scenario goes like this;
1) 2UE has long held the radio broadcast rights for National Rugby League (NRL) games and has a highly successful commentary team that achieves competition crushing ratings throughout game days, ie not just during the game itself. We are talking high ratings 12PM through 6PM Saturdays AND Sunday, throughout the season.
2) Come Season 2003, 2UE loses the broadcast rights. The "Continuous Call Team" then proceeds to "continue calling" (har har har) games from within their own studio by viewing Foxtels live TV coverage via satellite. Ratings continue to dominate, while the newly installed rights-holder (2GB) embarassingly languish in the basement.
3) NRL cries foul and demands that 2UE discontinue their "unauthorised descriptions" of NRL games.
4) 2UE initially flips the NRL the bird, but eventually relents because they know they stand a snowballs chance in hell of regaining the official broadcast rights were they to continue with that stance. It is unclear why they thought they would ever need the official rights in light of their "unofficial" ratings success.
It would have been interesting to see which side would have prevailed had it reached the courts.
So, how has it all panned out in 2007? Well, 2UE suffered through a change of owner, which apparently caused some serious discontent amongst the on-air staff. Meanwhile, 2GB management were unimpressed by the performance of their own on-air people so they began a large scale head-hunting effort which culminated in the entire "Continuous Call Team" moving across to 2GB, along with some other high profile non-league related personalities (ie "The Parrot") as well.
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Re:Just ridiculous notice to begin with (Score:5, Informative)
No [snopes.com]
Well, it's probably in the top few hundred.
And what the hell does "my" team loose? Their bowels?
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get them! (Score:5, Insightful)
The NFL has volunteered to be the object lesson of the moment, bless them. That NFL notice has been around for years-- since the 1980's at least-- and it always seemed out of step with reality. I'm not much of a TV watcher, so I don't really know but I can't recall any other sport or other kind of show putting up notices like the NFL's.
Here's hoping they get roasted in court, and don't get off with a wrist slapping. One more item to add to the pile of reasons why the DMCA was a bad idea. If events like this make enough of a stink, perhaps Congress will have to revisit the DMCA.
Re:get them! (Score:5, Interesting)
More than likely, if there is a revision to the DMCA stemming from this event, it would be to eliminate the "loophole" that penalizes a second takedown notice after a counternotice. Or, counternotices would no longer be available. The stakeholders in the DMCA have sufficient finances to make sure that revisions would benefit their perceived interests, not those of the public at large.
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Here's an old photograph of her (Score:5, Interesting)
old photograph [mrdodgy.com]
She's not just a lawyer, she's a cute geeky lawyer!
Perjury (Score:5, Insightful)
Re:Perjury (Score:5, Interesting)
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Astroturfers (Score:5, Insightful)
Wendy Seltzer is absolutely right. Her job ( as an academic lawyer [harvard.edu] involves comment on legal issues, and a corporation tried to stop her freely commenting on just such an issue because they didn't like the implied criticism. Normally when a lawyer stands up to the rich and powerful we cheer, not sneer. Dear astroturfers, football in all its varieties around the world thrives on corruption and dodgy business. No matter on what scale, people who try to clean up sport are working in the public interest. So now go back to your sad little PR jobs and fuck off, please
Wendy was our pro-bono lawyer for a time... (Score:5, Interesting)
Wendy [harvard.edu] Seltzer [seltzer.org] was our pro-bono, FSF-appointed attorney for a few years when we [plkr.org] were investigating a commercial company (not intentionally linked here, they don't deserve the hits) for using our GPL code without complying with the license [gnu-designs.com].
All we wanted [gnu-designs.com], was for them to bring themselves into compliance... and they insisted that they were, and we were wrong, and that the GPL was "...subject to interpretation". So we contacted the FSF [fsf.org] and they gave us Wendy. It's been a few years now, and we never really got final closure on the situation, so I'm not sure where it stands at this point. (past copyright infringement does not just vanish if you stop violating it in the present, however).
I have collaborated with Wendy over numerous dozens of emails and personally met her to sit down with the CEO of aforementioned alleged-infringing company in New York, and I can say that she really knows her field. I'm happy that she's doing good things for the EFF, they need someone of her skillset on-staff.
I have nothing but praise for her abilities and her skills. She was a brick wall between our project and the commercial company who tried to threaten us many times with their millions of dollars of investor money to try to silence us.
If Wendy is on your side, it's a good thing. It's where she shines the best.
Confusion (Score:5, Funny)
Lawyer: "Sir, yes, Sir" {emails DMCA takedown}
Lawyer: "WTF... !! Sir, they issued a counter takedown!"
Exec: "What the hell is that?"
Lawyer: "I'm not sure it has never happened before, it must be a mistake, I'll just email the takedown notice again... Maybe I should look up this DMCA in one of those big books I have in my office"
Re:well, according to the fbi... (Score:5, Interesting)
I wonder if filing a DMCA counter claim and having it ignored is grounds for dismissal and so now she can keep it up on youtube forever?
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Re:well, according to the fbi... (Score:4, Informative)
No. Fumbling DMCA procedures not mean the copyright holder surrenders their rights.
The clip she posted is permitted under fair use; that is what allows her to post the clip on YouTube indefinitely. If it isn't(or the NFL thinks it isn't), the NFL can take her to court for copyright infringement. And if the court decides the clip isn't allowed under Fair Use, the clip must be removed.
The interesting part of this story is the second take-down notice filed by the NFL. By failing to follow the correct procedures when a counter-notice has been filed, it opens them(NFL) up to a lawsuit.
Parent
well, according to every coach ever. (Score:5, Insightful)
They have attempted to enter litigation with an EFF lawyer and a law professor at that. You would have thought that they would have been careful not to make any technical mistakes with that kind of opponent.
There is a reason many sports teams read Sun Tsu and all his ilk. "Know thine enemy".
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Re:well, according to every coach ever. (Score:4, Funny)
I wasn't aware that Sun Tsu spoke archaic English.
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Re:Woo? (Score:4, Interesting)
I'm definitely interested to see this play out in court... it'll be an extremely interesting legal battle, whether or not it sets any precedents or changes anything for anyone.
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Re:Woo? (Score:5, Informative)
Admittedly, the list in that correction is out of date: since then we've busted a ClearChannel patent, revealed (after three years of research) a plan to introduce a broadcast flag copy controls in Europe, and made a DMCA abuser publicly apologise to the Net. Did I mention that EFF did that *this week*? Check the archives for previous stuff [eff.org].
Also, for the record, Wendy is a great lawyer, and a fine hacker of MythTV [seltzer.org]. I fully expect she'll kick the NFL's asses , then watch the action replay without ads later.
Parent
Re:Woo? (Score:5, Interesting)
She's a Law Professor, using an excerpt of a broadcast, the minimally necessary portion of it, in order to create a derivative work or commentary (her class).
I wish there was an HTML tag for patriotism. If you don't like the USA, then don't read below.
Unlike the ROW, which, despite your self important (usually the result of an inferiority complex) kafeeklatsh derision of US, is actually a corporatist dirigiste (with the state being the largest corporation) hell-hole, the US is still a common-law, the law applies to everyone, power is delegated from the people to the state, entity, even if it doesn't always seem that way.
In this case, you've got someone who knows the law, and has the corporatists by the jock-strap. The NFL are toast.
God Bless the USA. BTW: I'm an Immigrant from Europe, Ireland Specifically. When I left, my Mum asked me why, I said "Because in America, you have the right to be wrong, in Ireland, you only have the right to be right." Irish by birth, US Citizen by choice.
Parent
Re:Good thing about Civil Society (Score:5, Insightful)
Wow. What color is the air on your planet?
Businesses quite often go straight for overt criminality because they know that they can make a billion and pay a million dollar fine.
Heck, just look at Microsoft for the canonical example of that.
It's cute to be cynical
No, cynicism about that and realism coincide completely. There isn't anything "cute" about it.
But the fact that she will probably win this case points to a deep, significant difference between "the west" and the rest.
You misspelled "might".
It's only even "might" because what the NFL is trying to pull is *so* blatantly illegal. And it's only that because the DMCA is so new. This kind of shit is the purpose of that and similar recent laws such as the traitor act (Orwellianly named "Patriot") which, surprise surprise is being abused exactly as predicted by every sane person. A real no brainer since that was its purpose.
Perhaps you should pull your head out of whatever orifice you've stuffed it in and look around.
Maybe if you did you'd notice that the differences you're feebly attempting to illustrate are getting smaller and smaller all the time.
The fact that this is even happening at all proves that point.
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Re:Huh? (Score:5, Insightful)
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Re:Huh? (Score:4, Informative)
But wasn't Seltzer acting contrary to the law to begin with?
No, she was exercising fair use rights to educate people about misuse of the DMCA.
Parent
Re:Huh? (Score:5, Informative)
Not according to Seltzer.
Her contention is that she posted a brief clip for legitimate educational purposes. She is invoking her fair use rights, and therefore not contrary to any law.
(Furthermore she only posted the copyright notice, not even a clip of the football game itself, and the NFL claiming copyright infringement of the copyright notice is almost absurd.)
Parent
Re:Huh? (Score:5, Informative)
No.
There is a larger explanation of this ensconced in the statute, but Seltzer's use of the work is easily covered by the fair use exception. She posted it for criticism and commentary purposes, not for profit; the clip was posted as the best way to report on factual information; it was a puny segment of the original football game broadcast; and there is virtually no negative effect on the NFL's market for the posted material (after all, who would buy a video clip of their copyright assertion).
The reason the DMCA counter-takedown provision is there is because the public has a right to use copyrighted materials in this fashion, and in this case, the NFL confounded Seltzer's ability to exercise that right through the second takedown request. This portion of the DMCA is actually fairly reasonable in protecting both copyright holders and the public interest, and Seltzer was exercising her rights under the law, so the NFL is solely and completely to blame here.
Parent
Re:Huh? (Score:5, Interesting)
The NFL demanded that Youtube remove the clip as per the DMCA. This is their right as the content-holder if they believe that their copyright is being infringed.
Seltzer sent a notice to Youtube stating that she did not infringe the NFL's copyright (as it was a fair use of the clip). This is her right as per the DMCA.
At this point, the NFL is supposed to use the courts. Instead, they sent another C&D to Youtube.
What this really illustrates is that the DMCA safe harbor provisions are fairly flawed. It's economically infeasible to monitor clips, keep track of which ones have been C&D'd already, and then file suit for every infringement that comes back to them per section 512. Actually,
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Re:Huh? (Score:5, Insightful)
What you do not have the right to do: Record the game on your Tivo and post the thing in its entirety, or substantial portions, and place your recordings on YouTube.
What they're making you do is to put yourself in legal jeopardy to protect your rights to use the material. They're not the only ones. For example, documentary film makers (read guys with no budget) often get requests to license music or images that just happen to show up in the course of filming. For example, a song playing in the background, maybe from a nearby house. Technically speaking, they do not have to license the song if it happened to be playing in the background when they were shooting. However, they often choose to pay the royalty fee rather than fight over it (a more expensive proposition), or just drop the scene.
We're heading for a world where you might have to take every photo you want to place on flickr, and photo-shop out the Coke label, the designer logo on the sweatshirt, and the images on any posters or paintings that happen to be in the shot. This is all because attorneys for the trademark or copyright holders want to make you fight for the rights you already have.
Parent
Re:Huh? (Score:5, Interesting)
As far as I know, they're quite free to claim rights they don't actually have, so long as they don't actually take legally significant actions based on those statements. Similarly, I'm free to demand that you not take my picture while I'm standing in a public place. There's no legal requirement that I inform you that you are actually legally permitted to snap away (assuming you're not using my image for commercial purposes).
The law trumps their statement and it's up to the consumer to know his rights under the law. Their statement, perhaps sensibly, is stricter than what the law allows. They don't want you to be able to claim any rights to use their content beyond the bare minimum provided by law. Still, you are quite free to disregard any terms they've described that are stricter than the actual legal provisions. In the absence of a valid contract to the contrary, there simply is no mechanism for the NFL to add restrictions.
Of course, the DMCA take-down notices ARE legally significant. Making knowingly false statements means committing (IIRC) perjury. It's just possible that the original take-down notice may have been legitimate (although, honestly, no lawyer could possibly pass the bar and have a good faith belief that her use of the clip was in violation of the law, so even that is an EXTREMELY gracious statement). Once she filed her counter-notice, however, they can no longer claim this...
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Re:Pedantic (Score:5, Insightful)
You know what, in one day this woman has done more for my rights and the rights of others than you will in your life. If holding those who influence the law to actually abiding by them is pedantic, then I declare pedantry heroic.
Parent
Re:Pedantic (Score:5, Insightful)
The question is now between the copyright holder and the person responsible. The only sensible next step is to take the question to a court or drop it. Allowing repeated demands that the content be taken down would give WAY too much power to the copyright holder. The law has served its purpose and prevented anonymous copyright violation since someone came forward and took responsibility by filing the notice of fair use with the service provider.
The penalties for violation of process are critical. It's unreasonable to expect YouTube or other service providers to do anything other than comply with a take-down notice since that is the only way they can really be sure of satisfying the safe harbor requirements. The penalty section of the law gives a legitimate fair-user a mechanism to prevent abuse.
This was CLEARLY fair use and it was CLEARLY abuse by the NFL. This law is bad enough; don't let it be made worse by allowing the few limits it DOES have to be ignored. Take-down notices are serious legal documents and should not be issued lightly/automatically. I hope this is prosecuted vigorously.
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Re:Pedantic (Score:4, Insightful)
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Re:Gotta say .... (Score:4, Informative)
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Re:Gotta say .... (Score:5, Insightful)
No, it isn't anything even resembling any such thing. I'm amazed you managed to delude yourself so badly as to think such a completely ridiculous thing.
Personally I hope the judge calls foul on both sides.
There is no legal or rational basis for such an assinine action, but given the state of the union it's still not ruled out due in large part to people like you who refuse to spend a second thinking about it before whining about some made up crap.
She did it specifically to provoke a reaction.
Whether that's true or not is entirely irrelevant. The fact is that the law is crap and pointing that out is absolutely a good thing.
I'd rather see our court system used for something more productive that a tit for tat exchange over copyright.
While I'd rather see it used to restrict criminals like the NFL from violating my rights. I guess that's a major difference between us. I support liberty. You think we should all bend over and grab our ankles whenever anybody wants to fuck us. I'm much happier being me.
I think it's time for both sides on this one to grow up and I hope a judge tells them so before he tosses the whole thing.
Whereas I hope that the judge does his fucking job and busts the only guilty party for violating the only ameliorating part of a badly broken by design law.
Perhaps you shouldn't post when you don't have a fucking clue what you're talking about. It makes you look like a fool and a lapdog.
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Re:Is she single? (Score:4, Funny)
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Re:Is she single? (Score:5, Funny)
Then move in with Miss Seltzer.
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Re:Is she single? (Score:5, Funny)
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Re:Is she single? (Score:5, Funny)
Shes actually not bad looking and when you take into account that she is a techie and on the good guy's side that's like +10 to charisma or something.
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Re:Is she single? (Score:5, Funny)
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Re:Is she single? (Score:5, Insightful)
Imagine how these women feel if they read slashdot. Here they are, busting their asses to do something cool/good, they finally get some recognition, and the response is a debate on how nice her hips look or don't.
If slashdot really does represent a cross section of the IT industry, I understand now why there are so few women in that industry.
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Re:Is she single? (Score:5, Funny)
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Re:Is she single? (Score:5, Insightful)
Just knowing such women are out there can be of major importance to a guy. If this kind of response really was the reason so few women are in the industry, it sure would seem to be a vicious-cycle. Scarcity of women -> slobbering response -> greater scarcity, and so on. However, genetic disposition and residual cultural restraints probably have a lot more to do with it.
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If you have to ask... (Score:4, Funny)
What is wrong with you people?
You must be new here.
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Re:Is she single? (Score:5, Insightful)
I imagine it's because these women have already proven themselves to be desirable on an intellectual level via their accomplishments, so the next step in mate selection in physical attractiveness. Having a hot girl who's also smart is the holy grail of the male geek libido.
When one is on a message board that's [presumably] dominated by single males, what else would one expect?
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Re:Dear Wendy... (Score:4, Insightful)
It's a long, twisted road from fair use to litigious entrapment, don't you think? Or do you also think I shouldn't have been able to quote your post in my reply?
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Who keeps track of this crap? (Score:4, Informative)
Good Question! Are there teams of people going through the thousands upon thousands of YouTube videos looking for copyright infringements? How did the NFL find out that her clip was there in the first place? Did they stumble upon it? Was it pointed out to them? Is there some uber pattern matching software that big corporations use to sniff out violations?
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