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Censorship Your Rights Online

NFL Caught Abusing the DMCA 357

Posted by kdawson
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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NFL Caught Abusing the DMCA

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  • "ehh... uhhh... I uhhmm....ehh....what?" Seriously - posting a notice to take down a notice to post a notice of a takedown notice? Who keeps track of this crap?
    • by camperdave (969942) on Wednesday March 21, 2007 @07:21AM (#18426867) Journal
      Who keeps track of this crap?

      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?
      • Re: (Score:3, Informative)

        well I don't know about the NFL but I do have a friend who used to work for one of those net-nanny companies identifying pornographic content...

        if it's at all the same then it's a manual process, there is a small group of people that just spend all day searching for violations. Most likely, they just punched "NFL" into the search box on YouTube and the video came up.
  • Whistle (Score:4, Funny)

    by truckaxle (883149) on Wednesday March 21, 2007 @12:33AM (#18425129) Homepage
    Zebra adjusts volume on belt controller....

    "10 yards for Illegal Procedure by the offense, replay first down"
  • by spoco2 (322835) on Wednesday March 21, 2007 @12:33AM (#18425131)
    I'm an Aussie, so I've never watched an NFL game such as this, but that notice "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" is just plain crazy (hence her initial video posting I suppose)... I mean trying to stop people DESCRIBING an event... dear god who the F*ck do they think they are? What are you supposed to do when you're talking to your mates about the big game?

    "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"
    • by Paradise Pete (33184) on Wednesday March 21, 2007 @12:39AM (#18425173) Journal
      I mean trying to stop people DESCRIBING an event...

      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 ;-)

    • Re: (Score:3, Funny)

      by c.r.o.c.o (123083)

      "Oh F*ck that, let's talk about world political events"


      You might be on to something here... :)
    • by iPaul (559200)
      Super bowl Sunday is also one of the top days for spousal abuse. If your team looses and you beat your spouse, is that a form of infringement?
    • "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*.


      Actually, the notice mentions that you need express written consent, so just making a phone call wouldn't be enough.
    • by suckmysav (763172) <suckmysav AT gmail DOT com> on Wednesday March 21, 2007 @02:54AM (#18425887) Journal
      "I mean trying to stop people DESCRIBING an event... dear god who the F*ck do they think they are? "

      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.
  • If she sues, will the courts hold the NFL to the standard, and if they do, will it be more than a slap on the wrist?

    This looks to be a legal milestone, for better or worse.
    • by mwvdlee (775178)
      I hope the court will force the NFL to change their notice to something more fair-use; "This clip is copyrighted by NFL which means you can do whatever you want with it as long as you don't distribute it without modification".
  • Woo? (Score:3, Interesting)

    by Rydia (556444) on Wednesday March 21, 2007 @12:37AM (#18425161)
    So the judge says "you messed up, file an action."

    And then they do. And then, the overwhelming likelihood is, she will lose. That's really sticking it to... er... uh... I have no idea. This really is the equivalent of a legal prank, setting things up so you can pop up in the end and say "gotcha!" without anything really changing.

    Go team.
    • Re:Woo? (Score:4, Interesting)

      by White Shade (57215) on Wednesday March 21, 2007 @12:44AM (#18425209)
      i dunno, from the brief description, it looks like she's completely in the right, and it would require some pretty severely screwed up readings of the laws to make her lose in court. Unless there's some other loopholes buried in there, it seems about as straightforward as legal issues can ever be!

      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.

      • She clearly is in the right, but Rydia is right. The judge will likely say "That was illegal. Bad, naughty large corporation! Give me your wrist... *slap* Now file a proper lawsuit about it."

        (And then the oral sex!)
    • Re: (Score:2, Insightful)

      by Anonymous Coward
      And then, the overwhelming likelihood is, she will lose

      Not likely. There are many exceptions to copyright. Quoting of brief passages (or sometimes, even the entire work) for commentary, review, satire and education are perfectly legal.

      And as a law prof, she probably knows what she is doing.

      Moreover, the free publicity and law review article she will inevitably write about this can't be bad for her career.
    • by rm69990 (885744)
      Yes, because a short clip used for critique is forbidden by copyright law. Oh, and pigs fly as well. Time for you to get back to work and quit playing lawyer.
    • Re:Woo? (Score:5, Interesting)

      by ZWithaPGGB (608529) on Wednesday March 21, 2007 @01:23AM (#18425475)
      Umm, methinks you are unfamiliar with US Fair Use Criteria [stanford.edu].

      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.
    • It's often difficult to succinctly describe the difference between democracy as actually practiced in the USA, most of Europe, etc., and the pseudo-democracies seen in many countries that seem to have all the trappings, but don't quite work.

      In a country with a functioning civil society, the weak can use the law to defend themselves against the strong (sometimes, with varying success, etc., but it is possible and does happen). In most countries without a well-developed civil society, it's unthinkable that a
      • by Darby (84953) on Wednesday March 21, 2007 @02:38AM (#18425821)
        In the rich democracies, businesses generally don't bother with overt criminality, because they'd just have to give up the money anyway.

        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.

        • Re: (Score:3, Insightful)

          by jahudabudy (714731)
          Maybe if you did you'd notice that the differences you're feebly attempting to illustrate are getting smaller and smaller all the time.

          I understand and admire the anti-authoritarian philosophy you are espousing. The powerful will always want more power, which will come at the expense of the little people (like me). The few exceptions to this rule, historically, are remarkable in large part b/c they are so rare.

          However, I think you are being a bit pessimistic with the statement that "the differences
    • by Eivind (15695)
      Except:

      • They *didn't* file, as they're supposed to. Instead they sent a second notice. Which then cannot be claimed to be in good faith.
      • Why the fuck would she lose ? She posted a small quote for the purpose of critique, one with zero comercial value. Very VERY obviously fair use.

      Professors of law aren't generally stupid about law.

    • by SharpFang (651121)
      She'd set an easy to follow precedent.
      Copyright holders would think twice before sending out DMCA takedown notices using bots/spiders or army of drones, if they know the tactics could badly backfire and cost them big $$$.
    • by flonker (526111)
      It seems to me that the ones at fault are Youtube. If they received a counter notice, they needn't worry about the second C&D letter, and should have ignored it or responded to it with the counter notice attached. Of course, a lawyer would know better, and I'm curious what they would think on the matter from Youtube's perspective.
  • get them! (Score:5, Insightful)

    by bzipitidoo (647217) <bzipitidoo@yahoo.com> on Wednesday March 21, 2007 @12:41AM (#18425191) Journal

    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: (Score:2, Informative)

      by AO (62151)
      I can't recall any other sport or other kind of show putting up notices like the NFL's

      How about the NBA and MLB? I know when I watch the Spurs (basketball) local telecast, the have a lawyer from a local firm read the exact same message, just replacing NBA with NFL.
    • Re:get them! (Score:5, Interesting)

      by Saxophonist (937341) on Wednesday March 21, 2007 @01:15AM (#18425415)

      If events like this make enough of a stink, perhaps Congress will have to revisit the DMCA.

      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.

  • by iPaul (559200) on Wednesday March 21, 2007 @12:53AM (#18425273) Homepage
    I strongly suspect the NFL will continue asserting rights they don't have, putting the burden on the other guy to show their use is fair use. The only thing that would make them change their mind is if it cost them a lot of money - and I don't see how this is going to cost them a lot of money. Even if they have to pay 100,000 in legal fees and damages if this goes to court and they loose, that's chicken scratch. I'm not exactly sure how Ms. Seltzer could show sizeable monetary damages to create the basis for a large enough settlement to matter. The real problem is that attorneys view this kind of behavior in the best interests of their clients. Make the other guy fight to protect his interests, and maybe it won't be worth his while. Even if it goes to court and she wins, I would expect their behavior would not change. If I did the same thing tommorrow, I suspect I would just get into to a "filing match" until they sued me. Or they sue YouTube, which might mean I have to sign up for another account before I could post content there again. However, it is very interesting to see that the DMCA does have a provision for abuse that might come back to annoy them, if only slightly.
    • I'm not exactly sure how Ms. Seltzer could show sizeable monetary damages to create the basis for a large enough settlement to matter.

      I take it, then, that you've never heard of something called "punitive damages?" They're intended not to reimburse the plaintiff for actual damages done but to punish the defendant for misdeeds. In this case, the lawyers who filed the second take-down notice might well be subject to sanctions for their actions. IANAL and all that, but I do know enough to know such thing

  • Here is an old article [slashdot.org] on an interview with her covered on Slashdot.
  • by elfuq (89094) on Wednesday March 21, 2007 @01:26AM (#18425497) Homepage
    That I shot for the SF Bay Guardian.

    old photograph [mrdodgy.com]

    She's not just a lawyer, she's a cute geeky lawyer!
  • Perjury (Score:5, Insightful)

    by Detritus (11846) on Wednesday March 21, 2007 @01:35AM (#18425541) Homepage
    It will probably never happen, but I'd like to see some of these people prosecuted and convicted for perjury. You know, the part of the affidavit where the author says that the above facts are accurate and true, under penalty of perjury. If you haven't personally verified the facts in the affidavit, you have no business putting your signature on the document. Any lawyer who rubber-stamps a bogus complaint should be disciplined or disbarred.
  • Astroturfers (Score:5, Insightful)

    by Flying pig (925874) on Wednesday March 21, 2007 @04:29AM (#18426171)
    Why do I think a lot of the posts on this thread are astroturfers for the NFL? Because it is unusual to have so many anti-free speech posts on a /. thread, that's why.

    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

    • Re: (Score:3, Insightful)

      by Red Flayer (890720)

      Why do I think a lot of the posts on this thread are astroturfers for the NFL?

      Probably the same reason everyone thinks there are always astroturfers... because there are a significant amount of people who actually disagree with the the rabid "free-speech" (read: don't want to pay for content) "advocates" on Slashdot. They are typically modded into oblivion, which is why you don't see their posts a lot. Not that there aren't people on Slashdot who have valid concerns about copyright, and not to denigrate t

  • She could...go...all...the....way!

    The NFL got JACKED UP!

  • by hacker (14635) <hacker@gnu-designs.com> on Wednesday March 21, 2007 @07:03AM (#18426809)

    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.

  • by Pablo El Vagabundo (775863) on Wednesday March 21, 2007 @08:12AM (#18427115)
    Exec: "Hey found this on Utube, man, kill it!!"
    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"
  • by Wilson_6500 (896824) on Wednesday March 21, 2007 @08:44AM (#18427347)
    The "oops" on the NFL's part was, apparently, the NFL crossing a law professional, rather than the violation of the law in the first place?

    That's very sad: we've gotten to the point where we're happy to settle with having a case where we have a reasonable chance of the crime _just being brought into public light._

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