NFL Caught Abusing the DMCA

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!"

Just ridiculous notice to begin with

[spoco2]

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"

get them!

[bzipitidoo]

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:Huh?

[king-manic]

The point is her original action did not violate any laws. The NFL failed to follow the letter of the law.

I suspect this will not change the NFL's behavior

[iPaul]

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.

Re:Woo?

[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.

Re:Huh?

[iPaul]

No, the NFL is asserting rights to their material they don't have. If you take them at their word, you would have to get special permission from them to file a news report on the game, for example. That's clearly not the case. You don't have to have special permission to report on the superbowl. They would require, for example, you to get permission to take a 10 sec clip to show someone throwing a helmet. This falls under a paradigm known loosely as fair-use. For example, I don't have to get permission from a book author to quote a passage from their book.

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.

Re:Pedantic

[denttford]

Pedantic?

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.

Re:Pedantic

[etymxris]

It's not a trick. If they're issuing take-down notices in the name of the law they should actually understand what the law says. Neither is it a spirit vs. letter of the law issue. The proper procedures for copyright holders to take in the DCMA are outlined quite explicitly, and this was intentional.

Besides, no take-down notice should have ever been sent. Her use clearly falls within fair use. If the NFL is depending on "low-paid professional hatchet men" to act in their name, and these people make mistakes, then the NFL still bears full responsibility for these mistakes. After all, these people are working as legal agents of the NFL.

Re:Pedantic

[honkycat]

Umm, no, it's not pedantry. Although I'd argue that the DMCA is deeply flawed, this provision is one of the few palatable things about it. It provides a bit of balance -- the copyright holder can demand that the service provider immediately remove infringing content and the provider can escape liability by complying. This provision allows the person responsible for posting the allegedly infringing content to vouch for and take responsibility for the content. At this point, the safe harbor has served its purpose and the service provider need not worry about liability.

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.

Re:Gotta say ....

[Scudsucker]

You speak as if both sides were equal, which is laughable. You have multi-billion dollar industries with hordes of thousand-dollars-per-hour lawyers and very copyright-holder friendly laws on one side, and consumers on the other. Consumers that in the vast majority of cases are not lawyers nor have teams of lawyers working on their behalf. Consumers that are a very distant consideration after said multi-billion dollar industries throw millions of dollars at Congress.

You need a nice warm cup of Get Some Frikkin Perspective.

Re:Pedantic

[rm69990]

Please explain how exactly she "tricked" them. She exercised her rights under the DMCA, the NFL abused theirs. The NFL believed the clip was infringing, she believed it was fair use, so she properly filed her response with Youtube. The NFL should have raised the issue through the courts, and instead chose to abuse the DMCA by illegally filing a second take-down notice. Trickery on her part indeed! (That last sentence was sarcastic by the way).

Perjury

[Detritus]

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.

Re:What was her other defense

[eam]

It's fair use, not copyright infringement. If they had gone to court, she would win.

Re:Good thing about Civil Society

[Darby]

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:Dear Wendy...

[DamnStupidElf]

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.

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?

Re:Gotta say ....

[Darby]

isn't this the same kind of nitpicking BS everyone is so upset about?

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.

Astroturfers

[Flying pig]

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

well, according to every coach ever.

[Don_dumb]

The NFL legal team have made the classic schoolboy error

Always scout your opponent before you play them.

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".

Re:Is she single?

[an.echte.trilingue]

Why is it that whenever a woman does anything noteworthy the first response here on slashdot is whether or not she is hot/doable/marryable, etc. What is wrong with you people? There is a post further down the page that says she looks like a man... and got modded funny! WTF? A couple days ago, a 17 year old girl won a 100,000 dollar science fair prize, and at least 1/3 of the comments were about whether she was hot or not. Most likely none of the readers here will ever see the woman in real life, so just what value do these comments have in the discussion?

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.

Re:Is she single?

[ShadeOfBlue]

Is this really that hard of a question? Guys like girls who have some common interests as well as being physically attractive. Ever notice how average Joe's start slobbering when they hear a hot chick likes to drink beer and watch NFL? Same thing with geeks, they dream of hot geeky girls. Now of course it's true most readers will never meet these women, most guys are never going to meet any Victoria's Secret models, but that hardly stops them from talking about how hot they consider them. Furthermore, while model-type women may represent a small percentage of the population, it's no great surprise to see one while out walking. Hot geeky girls, on the other hand, are much more elusive. A geek in a small town could easily go his whole life without meeting a HGG. As a student at a large public university, I've met 0 hot, seriously-geeky girls and a few hot, sorta-geeky girls.

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.

Re:Is she single?

[Anonymous Coward]

Parent should be modded way up. /rant on Gentlemen: If either of these the ladies spoke of by the parent let their hair grow a bit and got a professional makeover including a different style of clothes it is highly likely you would be looking at them and drooling and the ladies seeing that would consider the makeover a waste of their time. Now mind you I am not saying they need the makeovers, I am saying you have preset images of what you think to be beautiful and they blind you to the beauty that both of these ladies possess and that beauty is evident from their pictures and often pictures do an injustice to the one pictured.

If this sounds like a harsh rebuke to some of you then so be it, some of your comments here deserve it and there are plenty of others here that probably agree with me. Which brings up another item, Slashdot is not a men's locker room and you should leave the locker room comments to a minimum unless you want to run the ladies off that do come here. /rant off

Re:Is she single?

[Digital Vomit]

Why is it that whenever a woman does anything noteworthy the first response here on slashdot is whether or not she is hot/doable/marryable, etc. What is wrong with you people?

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?

Now that's just wrong.

[Wilson_6500]

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._

Re:Good thing about Civil Society

[jahudabudy]

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 [between totalitarianism and US democracy] are getting smaller and smaller all the time". Ignoring the rest of the world (hey, I AM an American!) and just looking at the history of this country, you have to admit things are MUCH better now in terms of equity between the masses and the powerful than they were even 50 years ago. Microsoft is actually a very good example of this. They are a convicted monopolist. Maybe the punishment hasn't been enough to influence their behavior, but even a token slap on the wrist is much more than many, many companies that behaved much, much worse ever received. Look up the Homestead Strike; far from censuring Carnegie Steel for unfair business practices, the state sent in the militia to break up picketing workers. The state supporting business concerns over citizens was the rule for a large part of the history of industrialization in our country.

I'm not saying things are now wonderful; the state still tends to support corporate concerns over citizen concerns. But things are better; state sponsorship of corporations has to be more subtle today than before, b/c the people will not put up with such blatant power grabs on behalf of corporate welfare. And thanks to the internet, the masses can coordinate in an unprecedented manner to really utilize the power of our sheer numbers. The rich eating the poor will never go away, but we are making them work harder and more intelligently at it than ever before.

Re:Astroturfers

[Red Flayer]

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 those of us who are interested in more than getting freebies.

I believe the copyright system is broken. I also believe that there should be protection for creators of content.

This view has had me labeled "astroturfer" and "record company exec/shill," plus many other terms not suitable for public use. I usually point those people to my post history, but non-subscribers can't see the full history.

Are there astroturfers on Slashdot? Sure. Are there also valid posters who diasgree with the Slashdot copyright zeitgeist? You betcha. Should we deny someone's opinion because it is different than ours? I don't think so.

Re:well, according to the fbi...

[dlt074]

"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."

not to mention the NFL then has to pay all her legal costs... she's her own lawyer. perpetual employment via youtube. ;)