[Eugene Volokh, February 21, 2007 at 10:58am] Trackbacks
Copyright and YouTube:

Lawprof Wendy Seltzer runs an experiment:

My First YouTube: Super Bowl Highlights or Lowlights

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.

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.

Let's see whether the video, clear fair use, gets flagged by a copyright bot.

Update: My First DMCA Takedown, a mere 5 days later.

Prof. Seltzer discusses this further here., as well as notes the possibility of a § 512(a) counter-notification that may get the clip put back up; I didn't see any discussion in the post of whether she had indeed filed the counter-notification, and when results might be expected. Thanks to John Perkins for the pointer.

UPDATE: Prof. Seltzer reports further:

The clip was about 30 seconds: the copyright warning intoned over a montage of football helmets and portraits and a few seconds of uneventful football after. I believed the fair-use case was good enough to counter-notify that the takedown must have been mistake or misidentification. I sent that on Feb. 14, so the 10-14 business days of 512(g)(2)(C) is up in early March.

OrinKerr:
Was the clip in fact "clear fair use"?
2.21.2007 12:04pm
A.G. (mail):
I can sort of see why YouTube might not be able to use this video since they make a profit off their site. (Even though I still would think that would have been considered fair use 20 years ago and should be considered fair use.) But if you hosted the video yourself (assuming you don't make money off this blog), then wouldn't it be fair use?
2.21.2007 12:34pm
David M. Nieporent (www):
Orin: With the caveat that I haven't bothered to watch it, and am just relying on Prof. Seltzer's description of the clip, yes, it is.

A.G.: the fact that the user makes money off his use is usually a minor factor in the fair use analysis. To the extent it is a factor, it's usually because it folds into the fourth factor: effect on the market. Much legitimate fair use involves money-making -- e.g. much of what news outlets do.
2.21.2007 12:58pm
Gabriel (www):
That was fast.

As of now, youtube has pulled the clip with a note that NFL is claiming infringement.
2.21.2007 1:05pm
OrinKerr:
David,

Can you point me to Professor Selter's description? I don't see it.
2.21.2007 1:10pm
Eric James Stone (mail) (www):
The prohibition on "...descriptions, or accounts of the game..." is the part I always laugh at. They're claiming it's a copyright infringement if I talk about what happened in an NFL game.
2.21.2007 1:21pm
rothmatisseko (mail) (www):
Recounting facts of a game is allowed, since that case with the pagers that gave live updates -- NBA something...
2.21.2007 2:13pm
AF:
Orin: Prof. Seltzer said the clip was "not the football, but the copyright warning the NFL stuck into the middle of it." I take it that means there wasn't any actual playing going on in the clip, just a single nondescript shot between plays with the warning on the screen. If that description is accurate, then she has a strong fair use argument: the clip is used for the purpose of commenting on copyright law (first fair use factor), it copies a small amount of the copyrighted original (third factor), and presumably it doesn't affect the market for the copyrighted material (fourth factor). Even the second factor, the nature of the original, seems to weigh into her favor as the NFL's recording of the game is neither unpublished nor highly original.

However, the fact that she posted it on YouTube rather than, say, her own blog or powerpoint presentation, arguably complicates consideration of the first factor, "purpose and character of the use." The NFL could argue (implausibly, in my view) that YouTube is a commercial entertainment website, not a forum for commentary, and also that to the extent the form of her "commentary" is to deliberately provoke a copyright takedown, that is not a fair purpose. I hope and expect those arguments would fail, particularly in light of the other fair use factors, but you never know.
2.21.2007 2:31pm
e:
YouTube might be able to use a fair use defense against the NFL, but what obligation does it have to support fair use by another private entity? I don't have the 512 text here, but can't imagine that it forces someone to provide content.
2.21.2007 2:47pm
Wendy Seltzer (mail) (www):
The clip was about 30 seconds: the copyright warning intoned over a montage of football helmets and portraits and a few seconds of uneventful football after. I believed the fair-use case was good enough to counter-notify that the takedown must have been mistake or misidentification. I sent that on Feb. 14, so the 10-14 business days of 512(g)(2)(C) is up in early March.
2.21.2007 2:49pm
billb:
According to a later post on her blog, Seltzer has sent a counter-notification (on 2/15/2007, in fact).
2.21.2007 2:50pm
18 USC 1030 (mail):
e: I don't think you have it right. Presumably, YouTube wants ALL videos online that conform to their content policy (i.e. no nudity) and are not violitive of copyright law. The reason they take videos down is because they don't want to be sued for copyright infringement.

Therefore, I don't think YouTube would need to be forced to put the video back up. I think so long as it is apparent that there is no copyright violation, YouTub would want the video up. The more videos on the site means more videos played which translates to more page clicks; thus, more money for them.
2.21.2007 2:55pm
Shawn-non-anonymous:
There is significant grumbling in the marketplace over content providers and their agents using law to take away fair use. (And then sell it back to you at a premium..[grumble]) The DCMA, for example, prevents you from making a personal copy for archive/backup because to do so requires you to break copy protection. The Digital Rights (Restriction?) Management (DRM) on music "sold" in the iTunes store prevents you from transfering your "purchased" music to other individuals. Etc.

If YouTube is seen as overzealous in taking down videos that fall under fair use provisions, they stand to lose a good chunk of their market. You can only upset your customers so much before they take their hilarious Wierd Al style parodies elsewhere.
2.22.2007 9:23am
Sparky:
"Clear fair use"? Isn't that an oxymoron?
2.22.2007 11:53am
Allen Asch (mail) (www):
You think that's bad?

See this link: YouTube Purges LiberalViewer's account
2.23.2007 5:33pm