I was reading this article over at ARS and it gave me a good laugh. DMCA takedown notices are more and more common. I read at least one story a day where a company tries to use the DMCA to silence something they don't like or don't agree with. Most of the time, it is just easier for people and/or sites to just comply and take down the suspect content. This is what they are hoping for and this is what the NFL was hoping for. Too bad they ran up against a lawyer exercising her fair use rights.
Wendy Seltzer who is a law professor and also works for the EFF has a blog about the NFL's escapades. Basically, she taped a certain segment of the broadcast that said something to the effect that the NFL owns everything in the broadcast and it cannot be used in any situation without their consent. Wendy was teaching her students about how content owers are overstepping their rights. The statement in the broadcast made no concession for an individual's fair use rights. So she posted a video clip of this statement on YouTube and within 5 days a takedown notice from the NFL was sent to which se sent a counter-notification saying that the material was being used as a teaching tool and that she was well within her fair use rights to use it. YouTube reposted the clip. 12 days later the NFL again sent YouTube a takedown notice citing the DMCA. YouTube complied. Here comes the real funny part.
Apparently, there are some provisions in the DMCA that require the person using it to actually know something about it. Basically, when YouTube sent the NFL Wendy's fair use claim, they decided to ignore it. And because of that, they may now be in violation of the law. Wendy describes that it "...instead puts the NFL into the 512(f)(1) category of 'knowingly materially misrepresenting ... that material or activity is infringing'". A big no-no for the NFL and it's lawyers.
This just goes to show you how disconnected these people are from the law and how easy it is to use the DMCA to silence people. Content providers throw it around all willy-nilly and now it may come back to bite one of them. Good for Wendy. Good for the EFF. The NFL deserves everything they get out of this one. Hopefully, more and more of these cases will get content providers something to think about. This could be a big win for fair use advocates.
