Wendy Seltzer is a founder of ChillingEffects.org. She talks about her “run in” with the National Football League.

Wendy waits for the room to fill by running a very funny YouTube clip of the Daily Show segment about Viacom vs. YouTube. (The room is now packed.)

She was watching the Super Bowl and saw the notice: “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.” She took the clip off her MythTV and posted it to YouTube under the title “Super Bowl Highlights,” with a caption that said: “The NFL’s overreaching copyright claim.” That was on Feb. 8. Five says later, she got a notification from YouTube saying that they had taken the clip down because the NFL claimed it was infringing under the DMCA .

YouTube had received a list of 158 clips the NFL claimed was infringing. It’s likely that the NFL had a robot search for anything that was titled or tagged as NFL. Wendy asked to see the list and received it.

Wendy believes her clip was Fair Use of copyrighted material. That copyright doesn’t protect people from giving accounts of the game or describing the game. It doesn’t even prevent people from making some pictures from the telecast. Wendy’s clip was Fair Use because:

My use is for nonprofit educational purposes; the copyright in the telecast is thin; the portion of football that follows the copyright warning is a minute portion of the whole, with no significant action or commentary, useful to show people what it was the NFL claimed its copyright covered; and the effect on the market for or value of the work is non-existent.

At ChillingEffects, there is a counter-notification generator form that requires the claimant to get specific about why the piece is infringing. Wendy filled it in. This gives YouTube the ability to re-post the material without penalty; the poster now takes the heat if the complainant still complains. Wendy says this isn’t quite an even balance because YouTube’s terms of service protect it from complaints by users anyway, so while Viacom can sue YouTube for not taking a clip down, users can’t really sue YouTube if it doesn’t put the clips back up upon receipt of a counter-claim.

YouTube put Wendy’s clip back up.

Then, on March 18, YouTube once again removed it because the NFL again complained. Wendy says that the DMCA has no explicit mention of a second take-down notice. If a company doesn’t like a counter-notification, it can sue.

This time, it was clear that an individual from the NFL had actually watched the clip. But, Wendy thinks they were falling foul of 512f of the DMCA, which makes a person liable for damages (including lawyers’ fees) for knowingly misrepresenting that a clip is infringing. YouTube was required to pass along Wendy’s original counter-notification, so the NFL knew that Wendy was saying that the clip was for educational purposes.

Wendy sent back the same counter-notification. The Wall Street Journal blog and the Newark Star Ledger covered it, resulting in a letter from the NFL saying that Wendy clearly “doesn’t understand” the DMCA. They objected to the fact that Wendy included 20 seconds of game play around the ten-second copyright notice. But, the letter said, she has their permission to use just the copyright notice. (She included the 20 seconds as context. It does not show a complete play.)

Wendy wrote back, saying that she thinks the clip in its entirety is covered under Fair Use.

They replied with an email, saying that “there is a substantial difference of opinion us on this matter that cannot be reconciled.” So, the clip is still on line. But the NFL says it can offer no assurance they won’t complain again.

YouTube is built on the DMCA safe harbor (512c) that says that it doesn’t have to screen or filter content, or check the copyright of each piece posted. Instead, YouTube has to reply to claims of infringement. No one has alleged that YouTube has not responded. It’s followed the DMCA to the letter. Instead, Viacom et al. say that it’s “too hard” to send YouTube all these notices, so they want to shift the burden to YouTube. Even if YouTube could manage to do all that work, the next startup would find that too high a hurdle; it’d badly hurt innovation…a chilling effect. “I think they’re trying to renege on the deal that was struck with the DMCA.” Wendy would like to see the DMCA reformed “to address some of the burdens on speech” but not thrown out.

Q: (catherine bracy) Why do you think the NFL is “materially misrepresenting”?
A: They know that this is non-infringing. The second notification makes it harder to claim it was a good faith mistake.

Q: (bracy) Can I take a camera into the stadium, tape it, and put it onto YouTube?
A: The guards frisk you and say that your ticket is a contract that prevents you from using a camera. You could look on from a rooftop and tape it from there.

Q: Could you sell it?
A: There’s no copyright in the game itself, so yes. But if you tape a concert you can hear from your house, there’s copyright in the music itself. And “Super Bowl” is trademarked, which is why ads for, say, chips say things like “Stock up for the big game.”

The “knowingly misrepresents” phrase, Wendy says, was added by the entertainment industry to make it harder to sue complainants.

Q: (john palfrey) What’s their strongest case against your Fair Use claim?
A: Their strongest claim against the 20 seconds of football is that I haven’t transformed it or added educational material into the clip itself. They’ll say the announcers describing the plays is a creative work. And there are markets for licensing virtually everything, they’ll say. If they want phone companies to continue paying them to stream clips to cellphones, this is a market into which I’m intruding.

Q: What might your damages be under 512f?
A: It’s hard to quantify damages from speech. I didn’t lose money from students not attending class because I couldn’t talk about the clip, etc.

Q: (gene koo) How long can this take-down and put-back dance go on?
A: California recognizes that legal process can be used to squelch legitimate speech, so if this process continued, I might have a claim.

Q: (me) Someone posted an aggregation of Couric’s questions of the Edwards. It was taken down. Was that fair use? And if this had been done by Jon Stewart, would it be protected the same way it was for the amateur who posted it.
A: Yes, it sounds like fair use, and Stewart and the poster are protected by the same law. But there is no DMCA coverage for broadcast. I don’t know if Stewart licenses his clips or just asserts they’re fair use.

[Tags: berkman fair_use copyleft copyright nfl youtube dmca]