Randy Cassingham's Blog

The NFL Gives In! -- see Update Below

There's an interesting update on the story and discussion last week about the NFL's fight against churches -- the NFL warned churches not to show the Super Bowl game to parishioners due to copyright restrictions. Wendy Seltzer is a visiting assistant professor at Brooklyn Law School, where she teaches Internet Law, Information Privacy, and Copyright. She's also a fellow with the Berkman Center for Internet & Society at Harvard Law School, and was previously an attorney with the Electronic Frontier Foundation. She also founded the Chilling Effects Clearinghouse, which studies and combats the unwarranted legal threats that "chill" free speech online. "Chilling Effects offers resources for Internet users who face legal threats, and, through its collection of data, we hope to analyze the out-of-court effects of those threats to chill legitimate activity, or, conversely, the extent to which unlawful activity on the Net proves resistant to legal action." In short, she knows copyright law very well.

So Prof. Seltzer posted a clip from the Super Bowl on YouTube -- a very short snippet where the announcers read the copyright notice about the game. Anyone who has watched a football game knows the drill: "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 particularly objected to the prohibition against "accounts of the game" -- technically, that means you can't tell someone about a great play, or even the game's final score. That's certainly way beyond reason -- and way beyond what copyright law allows them to protect. (Copyright law protects the "expression" of a work's creator; it does not protect simple facts, which is why, for instance, I can re-write factual news stories for commentary in This is True).

Further, the "Fair Use" clause of copyright law allows for very limited portions of a copyrighted work to be reproduced for educational use or for legitimate commentary. Thus law professor Wendy Selzer's posting the snippet of the announcers reading the copyright notice for the purpose of educating the public about how the NFL is exaggerating its rights to prohibit things that copyright law doesn't prohibit, and commenting on that fact, is perfectly legal according to the law. But you guessed it: the NFL invoked the "Digital Millennium Copyright Act" and demanded that YouTube (now owned by Google) to delete her video snippet. And YouTube did. Oh, the irony!

Prof. Selzer has filed a DMCA "Counter-Notification" using a tool provided by her very own Chilling Effects site. She has demanded that YouTube replace the deleted video since it clearly does not violate the law. She pointed out (heh heh!) that the DMCA contains a provision "encouraging" ISPs to correct the deletion of non-offending material taken down after a DMCA complaint. The encouragement, she points out, is "They're immunized from suit by their users if they put [it] back."

Another Example

I've gone through this myself. The Associated Press newswire's copyright notice is similarly overreaching. It proclaims on its articles, "Copyright 2007 Associated Press, All rights reserved. This material may not be published, broadcast, rewritten or redistributed." All that is fine and good -- except the "rewritten" part. No one can write a new news story based on the facts contained in their stories? That's what journalists, especially columnists, do. There is no way they can enforce such a prohibition.

But in 2001, the Associated Press tried to -- against me. AP sent me a "cease and desist" from using the facts from AP articles for the purpose of commentary. How could they possibly know I was doing it? The only way they could know is because I identify the sources of my stories in my versions! It's at the end of each story, before my comment; "(AP)" notes a source story is from the Associated Press.

Yes, I fought back and yes, I won -- I refused, via my lawyer, to deny myself the very rights granted by the federal copyright law to use the facts to tell the story using my own expression and style, and then to comment on the story. I did (and do) the right thing by identifying the source of those facts in every story I write. AP backed off, but it still cost me over $1,000 in lawyer time to uphold my rights. "Chilling" indeed.

Copyright law provides for a copyright -- literally, the "right to copy" -- so that authors can profit from a work's creation as encouragement to create works for the public to consume. In exchange for that exclusivity on the right to copy, which includes the right to license those rights to others (so, for instance, I can sell a book collection of This is True stories to a large publisher for further distribution), the public gets a rich variety of intellectual property to be better informed and more entertained. And then the public later gets full rights to that material: after a set amount of time, the work falls into the "public domain" so everyone has that "right to copy" it. Both authors and the public benefit from this arrangement.

At least, that's the theory. Per the U.S. Constitution, authors get an exclusive right to distribute and sell our work for what's supposed to be a limited amount of time, but thanks to corporate lobbying that amount of time has been extended again and again; it's now 70 years after the death of the author. For works created by corporations, it's 95 years after the date of first publication, or 120 years from the date of creation, whichever happens first, so this year's Super Bowl will be under copyright until the year 2102. I consider that excessive, in part because Congress made that retroactive so that, for instance, Disney movies which would be out of copyright by now still aren't. Guess what corporation lobbied for that? Sure enough: Disney. But that's the subject of a different rant.

The bottom line: the NFL is exceeding its authority by demanding the right to prohibit the public from giving "accounts of the game" to others, just as the Associated Press exceeds its authority by demanding the right to prohibit anyone from "rewriting" the facts in its news stories. I called AP's bluff when they fought me, and I heartily endorse Wendy Seltzer's efforts to call the NFL's bluff.

March 6 Update:

Youtube responded to Wendy Seltzer's DMCA counter-notice and, proving they understood the concept of fair use, restored the video. Except that the NFL apparently complained again, and YouTube took it down again. Right hand, meet the left hand -- maybe you should watch what it's doing?