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Chilling Effects, YouTube, and the NFL

David Weinberger summarizes a Berkman Center talk given by Wendy Seltzer [her own blog is here]. Seltzer discusses her battles with the NFL over posting the clip of the NFL's over-reaching copyright notice on the recent Super Bowl broadcast. Here's a short clip, but if you're interested in IP (or YouTube, or just the future of the Web), read the Weinberger's whole post:

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.

After which ensues a side plot that might have ended up on the cutting-room floor in the final edit of Brazil, involving requests, forms, approvals, reversals of approval, and general portrayal of the convoluted and sad state of IP law today.

Update: And it's only going to get worse: Read this Gizmodo post about YouTube's new "Claim Your Content" program, designed to make it harder to post things to YouTube. Backed by the NBA and the NHL, the program streamlines the whole takedown notice procedure.

[via Joho the Blog]