Please Note: I am not a lawyer and nothing in this site should be taken as legal advice. Check out my top 10 list of things that make more sense than taking legal advice from me.

 

Wendy Seltzer v. The NFL

or

The NFL's Foul Play

 

Why the NFL Copyright Statement Is Overreaching

Wendy Seltzer is an expert on copyright law and how it has been abused to stifle speech on the internet. She is the founder of the Chilling Effects Clearinghouse, a site that keeps track of legal threats designed to chill free speech on the Internet, and she has served as a staff attorney with the Electronic Frontier Foundation. Seltzer thought that the copyright notice that the NFL uses at the start of their broadcasts is overreaching, and she posted this video on Youtube on Feb. 8, 2007 to make her point.

 

 

The video consists of a 10 second announcement stating: "This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or of any pictures, descriptions, or accounts of the game without the NFL's consent is prohibited." It is followed by 23 seconds of the Super Bowl-- not even one complete play was executed before the video ended. The video was titled "Super Bowl Highlights" and the video description stated "The NFL's overreaching copyright warning from the Super Bowl".

Clearly, the copyright statement in the announcement is overreaching. Some people have quipped that if you take the statement literally, you couldn't even mention the final score or talk about a big play because that would be a prohibited use of an account of the game. This interpretation of the copyright notice might be overstating the case since such discussions would probably be allowed as part of the "private use of our audience". Or would it? What if someone hadn't watched the game but only read about it in a newspaper or heard about it from someone who had watched it. That person, not having watched the game, would not be part of the NFL's audience. And since he was not part of the NFL's audience, he would not be able to mention the final score or talk about a given play since he would be creating a prohibited account of the game.

Alright, maybe that example is silly. But here is one that is a bit less so. What if I had a sports blog and I used it to discuss key plays of the Super Bowl. Millions of people around the world could read it, so my account of the game would no longer fall under the "private use" of the NFL's audience. According to the copyright notice, I would clearly be violating the NFL's copyright. And if my blog carried advertising and actually made money, I'm guessing the good folks at the NFL would sue my ass off if they could. But their lawsuit would inevitably fail. Much as they would love to prohibit unauthorized accounts of the game, YOU SIMPLY CAN NOT COPYRIGHT FACTS. (See Feist Publications v Rural Telephone Service Co. 499 U.S. 340 (1991) for more details.)

 

 

A Tale of Two DMCAs

 

Seltzer's point in posting the video was to show that the NFL is a copyright goon (my description, not hers.) And to prove that that they were an organization of sweet reason and not a bunch of copyright thugs, the NFL sent Youtube a DMCA takedown notice in order to have Seltzer's video removed. (1). Seltzer responded by filing a counternotice stating that she had a right to post the clip for educational use and agreeing to be sued should the NFL desire to contest her right to use the clip. Youtube restored the video fourteen business days after receiving the counternotice.

The ball was now in the NFL's Court. They could either let the situation stand as is with the clip restored, or they could sue Seltzer for copyright infringement. At least, that's what the procedure outlined in the DMCA envisions. Instead, they did an END RUN around the procedure in what looks to me like a FOUL PLAY. Instead of leaving things be or suing Seltzer, the NFL SENT YOUTUBE A SECOND TAKEDOWN NOTICE FOR SELTZER'S VIDEO!!! And Youtube did their usual brain-in-neutral knee jerk reaction of taking the video down again, even though they already had a counternotification on file from Seltzer stating, under penalty of perjury, that she was within her rights to post the video and that she agreed to be sued by the NFL if the NFL disagreed with her. Seltzer described the situation this way:

The DMCA way for NFL to challenge that, per 512(g)(2)(C), would be to “file[] an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material,” which they haven’t. Sending a second notification that fails to acknowledge the fair use claims instead puts NFL into the 512(f)(1) category of “knowingly materially misrepresent[ing] … that material or activity is infringing.”

Seltzer filed a second counternotice and Youtube restored the video twelve business days after receiving it.

Why did the NFL file a second DMCA instead of going to court as proscribed by the DMCA? Winning a case against someone with Seltzer's background would be a HUGE victory for an organization that aggressively defends its copyright. A win against Seltzer would deal a crushing blow to those who think they have a right to make Fair Use of short NFL clips and it would be a warning shot across the bow that would deter most people from even thinking about using NFL material in their videos. Anyone who could defeat such a highly prominent advocate of Fair Use would be viewed with awe amongst those who want to see stronger copyright protection.

So why weren't the NFL lawyers salivating at the chance to take Seltzer to court? As you will see below, the NFL claims that they didn't want to go to court because they didn't want to spend the time and expense prosecuting their case. But I am GUESSING that there is another reason as well. As discussed below, their case is weak and it seems extremely likely that they would get their collective butts kicked if they tried suing Seltzer. There is even a chance that the court could force them to pay her costs and legal fees if it determined that they knew that their DMCA was frivolous when they filed it. So filing a second DMCA complaint may have just been a novel tactical move that gave the NFL a chance to use Youtube's knee-jerk enforcement of its rules as a tool to remove Seltzer's video without the risks inherent in pressing a weak claim in court.

 

Was Seltzer's Use of the NFL Clip Fair Use?

As I discussed here in great detail, deciding whether or not a use is Fair requires an analytical balancing of (at least) four factors. Seltzer's Four-Factor analysis can be seen in the the fourteenth comment to her post announcing the takedown.

On the four factors of the statute, this is 1) transformative from the original purpose of the broadcast and used for non-profit educational purposes; 2) an excerpt from a factual account; 3) a short clip including no key moments from the game; and 4) utterly without effect on any NFL market.

Brian McCarthy, a spokesman for the NFL wrote this in response to Seltzer's claim that the NFL acted improperly when they sent a second DMCA to try to get Youtube to remove the clip. I am quoting his points out of sequence in order to provide a more efficient rebuttal.

(1) The posting that was removed contained more than our copyright notice — it contained game footage as well.

(3) We have valid grounds to disagree with the professor’s fair use argument. Had she simply used the clip in her classroom, before students, she might have had a stronger argument that the context was educational and entitled to fair use deference. But it was posted without any of this context, and in a manner available for anyone in the world to see, not just her students. So the impact on our rights is in no way lessened by her prior or subsequent reference to the posting with her students in their classroom. On the contrary, her motive is not integrated into the clip, the clip is not transformative in any way, and so it is no different than any other posting not having a hidden educational motive.

Au contraire. The clip IS transformative. The fact that Seltzer titled the video ""Super Bowl Highlights"" and put a statement in the video description indicating that the copyright notice was overreaching, transforms the copyright notice from a tool used by the NFL to intimidate others into curtailing their free speech rights into an ironic commentary about the most important feature of the Super Bowl--the fact that if you take their warning literally, discussing the game in a public forum would violate the NFL's unilateral interpretation of their copyright. And if Seltzer's point wasn't obvious from the title, she gave another hint when she transformed the clip by adding the following tags to the video: "Super Bowl.  football   legalese   warning   copyright"

McCarthy claimed that the educational intent was not obvious from the video and that Seltzer's "motive is not integrated into the clip". I have yet to find where it says in copyright law that the creator's intention must be discernable solely from the creation itself in order for the creation to be Fair Use. The law says that if the use was for educational, reporting, or commentary purposes, then that is one factor which weighs in favor of "Fair Use". As far as I know, the law does not state that piece's educational purpose MUST be obvious in the work itself. In this case, the piece's educational purpose is made obvious in Seltzer's blog which referred to the clip. Seltzer's wrote: "I snipped the copyright warning out of the weekend’s Super Bowl broadcast as an example for my copyright class of how far copyright claimants exaggerate their rights." Or if the NFL lawyers weren't smart enough to figure it out from that, the fact that she stated in her DMCA counternotice that the clip was "an educational excerpt featuring the NFL's overreaching copyright warning" might have been a clue.

And even if Seltzer didn't define the usage of her clip as "educational" in nature, it certainly would fall under one of the other purposes that point toward fair use such as news reporting, commentary, or stimulating public debate about how copyright law is used to stomp on the First Amendment. There is only one way the NFL could convince a judge that the clip was being used for commercial purposes. They could argue that Seltzer made a blog post that focused on the clip and that her blog carried advertisements, which means that Seltzer made money from using the clip. But this argument fails for three reasons. First, any money made from the blog is incidental to the blog's primary purpose to educate its readers about issues involving law and technology. Second, her website does not receive much traffic, so it is hard to believe it brings in much revenue. And she had made 333 posts on her blog before she wrote the entry that discussed her video clip, so any given post would only be responsible for a paltry amount of revenue. BUT MOST IMPORTANTLY, THE NFL WOULD SHOOT ITSELF IN THE FOOT THE MOMENT THEY INSISTED THAT THE COURT HAD TO LOOK AT THE RELATIONSHIP BETWEEN SELTZER'S BLOG AND THE VIDEO CLIP TO DETERMINE THAT THE CLIP WAS USED FOR COMMERCIAL PURPOSES. As soon as the Judge looked at the blog, its news reporting, commentary, and educational purpose would hit her harder than a punch from Mike Tyson. If the NFL thought that the Judge was about to look at Seltzer's blog, then their best legal strategy would be to send in their biggest linemen to tackle her before she reached her computer.

Finally, McCarthy noted that the clip might violate Fair Use because it contained actual game footage in addition to the copyright notice. If he had wanted to expand that point he might have mentioned that 2/3 of the clip consisted of game coverage. But look closely at the third factor of the four-factor copyright test.

In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; (emphasis added)

Note that the relevant test is the percentage of the clip in relation to the work that was copied, not the percentage of the clip in relation to the allegedly infringing video. Though 2/3 of Seltzer's video consisted of coverage of the actual game, the 23 seconds of game coverage used made up 0.64% of actual playing time. Could a court consider in its analysis that 2/3 of Seltzer's video consisted of game coverage? Of course it could. The wording of the law states " the factors to be considered shall include—", not "the factors to be considered shall only include—" . So a court could consider this as a factor. But it would not be obligated to consider this. And even if it chose to consider this factor, it would probably weigh the factor that it is obligated to consider more heavily than one that it has the discretion to consider. Since the video didn't even include one complete play, it seems inevitable that a judge would conclude that the length of video used points toward Fair Use.

To sum up, McCarthy did not challenge factors 2 and 4 weighing in favor of Seltzer in Seltzer's four-factor analysis. He only contested factors 1 and 3. Since the clip that Seltzer used was so short, it is almost inevitable that a judge would weigh factor 3 in her favor. Factor 1 would probably be weigh in Seltzer's favor, but this is not as certain. Her clip though transformative, was only minimally transformative. Whether the transformation was enough to convince the Court to weigh this factor in her favor is uncertain. But it is almost certain that the Court would rule that the clip was used either for educational, news reporting, or commentary purposes, so this factor would likely weigh in her favor. Bottom Line: At least three of the four factors point toward Fair Use, and the fourth factor probably points that way as well.

 

Is Fair Use a Right or Just A Defense to Infringement?

McCarthy wrote:

(2) The fact that we got a copy of the counter-notice asserting the professor’s fair use argument does not make it illegal for us to send another notice. A notice under 512(c)(3)(A)(v) only requires a good faith belief that the use of the material “is not authorized by the copyright owner, its agent, or the law.” Fair use is a defense to infringement, not a right, and the the professor’s mere assertion of a fair use right does not establish that the the fair use defense is valid - a court would have to do so. We are entitled to disagree, in good faith, with her asserted defense, absent a court decision.

 

The claim that "Fair use is a defense to infringement, not a right" is one that will generate much debate amongst intellectual property lawyers. It's a claim often made by copyright holders who want to maximize their profits at the expense of the free speech rights of others. It's the type of claim one would expect from an organization that claims "Any other use of . . .accounts of the game without the NFL's consent is prohibited."  I would expect nothing less of an organization that was trying to convince us that they it could copyright facts.

It is true that procedurally, Fair Use can only be raised as an affirmative defense after the Defendant has been served with a complaint. That is, the copyright holder only needs to assert that the she owns the copyright to a work and that the Defendant made an unauthorized copy of it in order have cause for a lawsuit. The Defendant can then raise the issue of Fair Use as a defense, and the burden of proof will then fall upon her to show that her use was fair. The Plaintiff has no obligation to state in her complaint that the Defendant's use fell outside of Fair Use.

So technically, McCarthy is correct that anyone can file a copyright infringement lawsuit, even if almost all disinterested observers were to conclude that the copying obviously was Fair Use. And it is true that only a Court can definitively decide whether a given use is Fair. But he is dead wrong if he thinks that any unauthorized use can only be justified if the defendant is willing to fight it out in court, and he is wrong to think it is acceptable to use the legal system to suppress or remove any work that involves the fair use copying from another work simply because he can.

Because despite what McCarthy says, FAIR USE IS A RIGHT!!! All you need to do is look at the Constitution to understand the purpose of copyright law, and once you understand the purpose of copyright law you can only conclude that Fair Use is a fundamental right. If you doubt me then I invite you to carefully read my discussion of the purpose of copyright law. Read it over three or four times and let its message slowly sink in to your noggin. Read it over slooooowwwwly, and move your lips if you have to. How could we possibly have the free press necessary for a democratic system without the right to quote others? How can we become informed voters if editorial writers could not accurately quote from the writings or speeches of politicians in order to explore their strengths and weaknesses? There are individuals who expose stock corporate fraud by quoting from corporate web sites and press releases and showing discrepancies between their exaggerated claims that they scream out in public and the financial documents that they quietly file with the SEC. The line that "Fair use is not a right" is one that would be loved by scammers around the world because they would love to be able to deny those who would expose them the right to use their words against them. Cockroaches love to hide in the dark, and Fair Use is the light that exposes them.

And if anyone is still in doubt that there is a right to fair use, just check out Seciton §108 (f)(4) of the Copyright Act which states that "Nothing in this section — in any way affects the right of fair use as provided by section 107 . . . " (emphasis added.)

I want to pause for a few seconds to give Mr. McCarthy a chance to borrow a terrible towel from the Pittsburgh Steelers to wipe the egg off his face.

Unfortunately the way the law is currently written allows a copyright bully to easily stifle the right of Fair Use. The DMCA is exhibit A. But even without the DMCA, a copywrite owner can bring a lawsuit for infringement, even if the copying in question is an obvious Fair Use, and the burden will be on the "infringer" to shell out tens of thousands of dollars to defend her right to Fair Use. The "infringer" may be awarded her legal costs in the end, but most people don't have the time or resources to fight it out in court. They will be either overly cautious about quoting from other people's work so they won't be sued in the first place, or they will back down and withdraw their work from the public domain in order to appease the original copyright owner and avoid a potentially bankrupting lawsuit. The law should be rewritten so that a Plaintiff who files a lawsuit must plead in the complaint that the "infringing" work is not making Fair Use of the work that was copied. And there should be stiff penalties and jail terms against the obvious misuse of copyright and libel law to stifle free speech. Only then will Fair Use receive the protection that a fundamental right deserves. Only then can copyright law be brought in compliance with the vision set forth by our Founding Fathers in the Constitution.

Don't hold your breath on that happening though. Not when powerful special interests have the muscle to hire an army of $400 an hour lawyers to lobby Washington and spin wily webs of words to confuse us into thinking that Fair Use is not a right.

 

 

Was the NFL's Second Takedown Notice Illegal?

 

McCarthy wrote:

(4) The DMCA does not require us to challenge her fair use assertion in court. The blog cites 512(g)(2)(C) for the proposition that this is our only recourse. But that provision relates only to YouTube’s liability for reposting. . . . But neither of these points means we are acting illegally if we choose not to spend the time and expense of going to court in response to professor’s claims.

Technically, McCarthy is correct. The DMCA does not force the NFL to go to court to challenge Seltzer's use of the clip. And the NFL probably did not violate any laws when it filed the second DMCA notice. But that is probably only because those who wrote the DMCA did not envision that someone would have the audacity to file a second DMCA after a counternotice trumping the first DMCA was filed. And they probably did not envision an ISP with such a craven copyright enforcement policy that they would reward someone who files multiple DMCA complaints instead of taking their fight to court as specified by the DMCA. So the NFL lawyers can stand up and take a bow for finding a loophole in the law.

But in doing so they have demonstrated why lawyers are in one of the most hated professions in America. They may not have violated the letter of the law, but they sure stomped the hell out of its spirit.

Imagine what a world would look like if EVERYONE acted like the NFL and anally asserted the maximum rights extended to them by copyright law to prevent unauthorized use of their material. Well, you don't have to use your imagination because John Tehranian has already done it for you in this thought provoking article, "Infringement Nation: Copyright Reform and the Law/Norm Gap". Pay close attention to the thought experiment starting on page 7 (Infringement Nation). Tehranian paints a nightmarish picture in which one law professor engaging in normal activities

infringe(s) the copyrights of twenty emails, three legal articles, an architectual rendering, a poem, and fifty notes and drawings. All told, he has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of potential criminal charges.) There is nothing particularly extraordinary about John's activities. Yet if copyright holders were inclined to enforce their rights to the maximum extent allowed by law, barring last minute salvation from the notoriously ambiguous fair use defense, he would be liable for a mind boggling $4.544 billion in potential damages each year.

Now, imagine what would happen if every copyright holder followed the NFL's example and filed multiple complaints to get unauthorized copying from their works removed from the internet and if every ISP followed Youtube's example and automatically removed material without doing even a cursory investigation into the legitimacy of the complaints. Free speech on the internet would be dead.

 

A Fair Use Analysis on My Use of McCarthy's Comment

I quoted extensively from Brian McCarthy's comment, and it is possible that Mr. McCarthy might not be happy with my use of his writing. Here is a Fair Use analysis to convince McCarthy that my taking of his work is justified.

  1. The purpose and character of the use: I used his work for noncommercial commentary that was vastly transformative. I win on this factor.
  2. The nature of the copyrighted work: I copied from a previously published informational work. I win on this factor.
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole: I quoted about 95% of McCarthy's comment. McCarthy kicks my ass on this one.
  4. The effect of the use upon the potential market for or value of the copyrighted work. I can't possibly imagine a potential market for McCarthy's oeuvre. And even if there was such a market, it is hard to imagine that my critique of his work would act as a substitute for it. I win here.

So I win resoundingly on three of the four factors, and McCarthy wins resoundingly on one. And I win on the fourth factor, which may be the most important factor of all. Now I don't know Mr. McCarthy or whether he is the type to file a frivolous lawsuit to stifle free speech. He probably isn't such a bad guy and he will probably take this all in stride. But just in case I'm mistaken, Mr. McCarthy, before you sue me for copyright infringement, ask your lawyers about Rule 11.

 

Cover My Ass Disclaimers To Make The Lawyers Happy

1 Note to NFL Lawyers: If you are thinking of suing me for libel over the sentence preceding the first footnote, please note that it is nothing more than a rhetorical flourish used for ironic effect and not intended as a statement of fact that I have read the minds of NFL officials and that during said alleged mind-reading session determined that this indeed was the NFL's reason for sending in the DMCA notice. Sheesh, some people just don't have a sense of humor or proportion. (2)

2 Note to NFL Lawyers: Footnote 1 should be taken as a rhetorical flourish and not as a statement of fact that, had I not included said footnote, it is inevitable that the NFL would have sued me for libel. Nor should it be taken as a statement of fact that no one in the NFL has a sense of humor or proportion, nor that the NFL as an organizational entity lacks same sense of humor or proportion. (3)

3 Note to NFL Lawyers: Footnote 2 should be taken as a rhetorical flourish and not as a statement of fact that, had I not included said footnote, it is inevitable that the NFL would have sued me for libelously implying that they were not smart enough to figure out that Footnote 1 was a rhetorical flourish. (4)

4 Note to NFL Lawyers: Oh, for Chrissakes. . . this is getting ridiculous.

 

Interesting Articles for Further Reading

Fair Use: A Right or Privilege--Brief Article

Wendy Seltzer's disagreement with the NFL

Copyright Lobby Continues To Pretend Fair Use Is Not A Right

Fair Use is not a consumer right

FTC complaint flags NFL, MLB, studios for overstating copyright claims

Google, Microsoft-backed group ready to Defend Fair Use

Statement from Executive Director Patrick Ross Re: FTC Dismissal of CCIA Filing on Copyright Warnings

CCIA Monitors Copyright Overreaching

 

 

 

 

Table of Contents

Home

Back to DMCA Abuse

Creative Commons License
This work is licensed under a Creative Commons Attribution-Noncommercial 3.0 United States License.

Please attribute excerpts you take from my work to themaskedanalyst and include a link to themaskedanalyst.com.