NFL Caught Abusing the DMCA 357
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!"
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?
Woo? (Score:3, Interesting)
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)
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.
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,
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.
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.
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!
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...
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.))
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.
Re:Perjury (Score:5, Interesting)
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.
Re:Woo? (Score:0, Interesting)
Look it up.
Since you're touting your record, what happened with DeCSS? (correct answer, the EFF fucked up badly, let's see if they own up)