Chalk this one up to "I should have read the fine print all the way through." Once and a while, I find something on Digg that piques my interest and this morning it seems, the NFL just doesn't understand how to use the DMCA properly when sending out take down notices. Apparently it also doesn't understand the full and broad reaching meaning of "fair use." Enter law professor Wendy Seltzer.
Wendy, who started the Chilling Effects Clearinghouse website, was also a lawyer for the Electronic Frontier Foundation at one point in time. Ms. Seltzer decided what better way to demonstrate to her class that the copyright statement the NFL airs before the Superbowl (and for any other football game for that matter) does not make exception for common fair use, than to demonstrate it on YouTube.
"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"
Her demonstration included putting a clip up on YouTube which did include the copyright notice (stated above). Within a few days, YouTube sent her a copy of the NFL's DMCA order, which YouTube abides by (see Viacom, they do take things down). The story doesn't end there though, Seltzer, a very well versed lawyer in DMCA law, sent a counter-notification using the "fair use" clause of the DMCA. Again, YouTube abides the DMCA and replaces it.
Here's where things get interesting. For all the "legal-eze" Ms. Seltzer has an explanation on her blog, but in a nutshell, since the NFL sent yet another DMCA request, they are now in violation of the DMCA. Why? Seltzer explains that because the NFL did not acknowledge the clip as fair use and sent another take down notice, they are now in violation of the DMCA section 512(f)(1). That section of the law states that sending another take-down notice over the same content is considered a knowing misrepresentation that the clip is infringing. Yes, confusing for us non-lawyer types. Maybe Kevin O'Keefe (my favorite blogging lawyer) over at LexBlog could chime in?
So what's next? That I'm not sure of, but I'm going to keep an eye on Wendy's blog and keep you appraised of the situation. This should prove very interesting, and I bet Viacom is going to be watching this closely, too, since Google/YouTube stance on the Viacom suit is "fair use."