NFL Abuses DMCA, Overreaches in Claims of Rights

The NFL took action when Law Professor, Staff Attorney for the Electronic Frontier Foundation, and founder of Chilling Effects made public their over-reaching claims of rights preceding the Super Bowl. Wendy Seltzer took exception to the claim, as it clearly makes no concession for fair use. She posted a YouTube clip on her personal blog in February which showed the copyright message. The video she posted is as clear an example of fair use as you can get - it was a brief excerpt reporting facts as they pertain to an educational lesson.

The NFL filed a Digital Millenium Copyright Act takedown notice through YouTube, saying that the NFL had claimed copyright violation and that the clip had to be removed. This is illegal when the takedown notice is known to be illegitimate, but even giving the NFL the benefit of the doubt...

Seltzer did what she is supposed to do - she filed a counter-notification, generated by her own Chilling Effects site. Section 512 of the DMCA lays out the process for filing counter-notifications and asserting "good faith belief" that the material removal was a mistake. From here, YouTube is required by the DMCA to repost the video, and the NFL if they want to take further action must follow up with court proceedings. In other words, the DMCA lays out that if there is resistance to a DMCA claim, stop wasting the time of uninvolved third parties and get the argument in front of a judge.

YouTube reposted the video, as required by the DMCA. The NFL, however, rather than following procedure clearly outlined by law, and with the obvious supervision of high powered attorneys, filed a second and clearly illegal DMCA takedown notice with YouTube. Go figure that YouTube responded and brought down the video once again.

Unfortunately for the NFL, these kinds of issues are specifically the kinds of issues that get Wendy Seltzer's blood boiling. She not only has the ability to follow this through, given her legal background, but she has the backing of the EFF and therefore the interest and support of techno-weenies like me the world over. Further, given her stature in the legal and technical communities, she truly is faced with the moral responsibility to follow through on this. The bonus for her is that the NFL will be forced to pay for all of the legal fees incurred, as they have clearly violated the letter and spirit of the law, and the penalty for doing so is clearly stated within the law.

There are not a lot of people willing to take on the NFL's legal team. Disney has even backed away from using the term "SuperBowl" on disney owned radio stations. The EFF and particularly Wendy Seltzer have a track record for following through where nobody else will - and most often in cases pertaining to online copyright cases.