The National Football League (NFL) has gotten itself caught up in an online battle over a YouTube clip with Brooklyn Law School professor Wendy Seltzer, and has managed to violate the Digital Millennium Copyright Act (DMCA) through its actions. As a lesson to students about how content owners are beginning to exaggerate their rights, Seltzer posted a clip of the NFL's copyright message that aired during the Super Bowl. "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," the notice read. Just five days after posting the clip on her blog, she received a takedown notice through YouTube, and the clip was removed.
However, Seltzer is also staff attorney for the Electronic Frontier Foundation (EFF) and the founder of Chilling Effects, a website that educates the public about their rights online. She sent a counter-notification to YouTube which cited Section 512 of the DMCA. It meant that YouTube was compelled to replace the material on receiving a counter notification asserting "good faith belief" that the material removal was a mistake.
After several weeks, the video appeared again on YouTube as a result. However, the NFL then made the mistake of sending another takedown notice and getting it removed from YouTube once again. Since Seltzer's counter-notification described her use of the clip as fair use, being an "an educational excerpt featuring the NFL's overreaching copyright warning aired during the Super Bowl", the NFL's only option to force the removal of the video would be through court proceedings.
After receiving her counter notification that claimed fair use rights, DMCA Section 512 considers sending another takedown notice over the same content as a knowing misrepresentation that the clip is infringing. This would make the NFL liable for all legal fees incurred by the alleged infringer, and also damages. Seltzer seems to determined to keep pushing back on the issue, maybe even until it goes to court, in which case, the court would more than likely agree with Seltzer. That could change the policies of content providers who bombard sites like YouTube with takedown notices.
