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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!"
Quite a clever woman.
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?
"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?
Zebra adjusts volume on belt controller....
"10 yards for Illegal Procedure by the offense, replay first down"
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"
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.
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.
Intellectual Property is a monopolistic, selfish, and defective concept. It is "tyranny over the mind of man"
The point is her original action did not violate any laws. The NFL failed to follow the letter of the law.
"There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy."
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.
Leave the gun, take the cannoli -- Clemenza, The Godfather
But wasn't Seltzer acting contrary to the law to begin with?
No, she was exercising fair use rights to educate people about misuse of the DMCA.
Time is what keeps everything from happening all at once.
But wasn't Seltzer acting contrary to the law to begin with?
Not according to Seltzer.
Her contention is that she posted a brief clip for legitimate educational purposes. She is invoking her fair use rights, and therefore not contrary to any law.
(Furthermore she only posted the copyright notice, not even a clip of the football game itself, and the NFL claiming copyright infringement of the copyright notice is almost absurd.)
No.
There is a larger explanation of this ensconced in the statute, but Seltzer's use of the work is easily covered by the fair use exception. She posted it for criticism and commentary purposes, not for profit; the clip was posted as the best way to report on factual information; it was a puny segment of the original football game broadcast; and there is virtually no negative effect on the NFL's market for the posted material (after all, who would buy a video clip of their copyright assertion).
The reason the DMCA counter-takedown provision is there is because the public has a right to use copyrighted materials in this fashion, and in this case, the NFL confounded Seltzer's ability to exercise that right through the second takedown request. This portion of the DMCA is actually fairly reasonable in protecting both copyright holders and the public interest, and Seltzer was exercising her rights under the law, so the NFL is solely and completely to blame here.
The clip she used was short and used for educational purposes. It clearly falls under fair use. What is ironic is that she was using the clip to show how corporations are abusing the DMCA nad copyright law.
/right/now/ that's probably not true, however if more people exercised their rights, it would be. Copyright needs to be a balance between the rights of the creators of the work and the rights of the people. If the burden on the corporation becomes too high, they'll simply buy a stricter law.
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,
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.
Leave the gun, take the cannoli -- Clemenza, The Godfather
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.
Leben Sie jetzt die Fragen.
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.
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.
That I shot for the SF Bay Guardian.
old photograph
She's not just a lawyer, she's a cute geeky lawyer!
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.
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).
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.
Mea navis aericumbens anguillis abundat
The following is not meant to disagree with you (other than possibly on a small point, I can't tell from your post).
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...
It's called a test case, and it isn't a trick or "nitpicking BS".
Mea navis aericumbens anguillis abundat
Yeah, she tried to do the same thing to Ted Stevens
What?
I'd marry her too, except I think it would upset my wife and eight kids.
Do it yourself, because no one else will do it yourself. [beta blockade 10-17 Feb]
It's fair use, not copyright infringement. If they had gone to court, she would win.
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.
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?
Copyright your DNA, and send a DMCA notice to your wife forcing her to delete or surrender the kids as unauthorized derivative works of your exclusive intellectual property.
Then move in with Miss Seltzer.
echo -e 'global _start\n _start:\n mov eax, 2\n int 80h\n jmp _start' > a.asm; nasm a.asm -f elf; ld a.o -o a;
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.
So after this lady wins her case in court, exactly what will we be able to do differently? Post clips of NFL games to YouTube with impunity? I doubt it.
We should be able to post brief clips for educational use that do not cause economic harm to the copyright holder- exactly as the law states. That the NFL cannot grasp the laws of a free country does not mean fascism has won yet.
Changa hates change.
You'd have to have a birth certificate signed by at least three separate and unrelated dieties worshiped by over 50 million people, to get the attention of a woman like that. Probably more like 100 million now that it's the 21st century. Inflation and all that. No, I am NOT posting under my real Slashdot name for fear of being modded down to China.
For a picture of her go to http://icannwiki.org/Wendy_Seltzer.
Shes actually not bad looking and when you take into account that she is a techie and on the good guy's side that's like +10 to charisma or something.
unzip; strip; touch; finger; mount; fsck; more; yes; unmount; sleep
You gotta be joking! You'd last about 10 minutes, whenever you left the toilet seat up you'd be so wrapped up in litigation that you'd be lucky if you ever peed again!
Wendy Seltzer is absolutely right. Her job ( as an academic lawyer 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
Pining for the fjords
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".
If this were really happening, what would you think?
Definitely gotta put the emphasis on charisma though. And hit points.
Do it yourself, because no one else will do it yourself. [beta blockade 10-17 Feb]
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.
weirdest thing I ever saw: scientology advertising on slashdot.
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.
What is wrong with you people?
You must be new here.
That's our life, the big wheel of shit. - The Fat Man, Blue Tango Salvage
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?
Modern copyright is theft of culture from everyone and it retards the progress of the useful arts and sciences.
Wendy Seltzer was our pro-bono, FSF-appointed attorney for a few years when we 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.
All we wanted, 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 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.
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?
When our name is on the back of your car, we're behind you all the way!
No. Fumbling DMCA procedures not mean the copyright holder surrenders their rights.
The clip she posted is permitted under fair use; that is what allows her to post the clip on YouTube indefinitely. If it isn't(or the NFL thinks it isn't), the NFL can take her to court for copyright infringement. And if the court decides the clip isn't allowed under Fair Use, the clip must be removed.
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.
If the govt becomes a lawbreaker, it breeds contempt for law, it invites man to become his own law, it invites anarchy
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"
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._
I agree. It's really disheartening. You'd think the intelligent 'beta males' of geekdom would sympathize a little more with women but it just ain't so. Apparently being bullied or otherwise looked down on doesn't make one more sympathetic - it makes one more likely to bully, objectify or otherwise put down someone else that is perceived as being lower on the social totem pole (i.e., female).
Of course this isn't true of all men or all geek men. Perhaps it's just the jerks that post the most, who knows? I do personally know some men (geek and otherwise) that are awesome.
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.
...sometimes, in order to hurt someone very badly, you have to tell that person terrible lies. - PA
Forgive me for being an NFL apologist (heck, I watched all of two games last season), but this hardly qualifies as front-page Slashdot news with a title of "NFL Caught Abusing the DMCA". I thought this was going to be about the NFL sending out thousands of inaccurate DMCA take down notices or something comparable.
Actually they would be completely within their rights to send out any number of DMCA notices, because they could argue they had a good faith belief that the material is infringing. The present situation is legally worse for the NFL since the existence of a counterclaim proves that there was no good faith.
Give me Classic Slashdot or give me death!
If you copyright your DNA you will have the greatest euphemism for masturbation so far: "exercising my intellectual property rights."
This is not my sandwich.
"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.