A copyright lawyer tackles the SuperBowl
Posted by metaphorical on 16 February 2007
Just when you thought the irony-laden intersection of copyright law and digital media couldn’t get more Beckett-like in its absurdity, along comes the case of Wendy Seltzer vs YouTube and the NFL.
Seltzer is a visiting professor at Brooklyn Law School. This semester she’s teaching Internet law and copyright law, and in that context she posted to YouTube a particular snippet of this year’s SuperBowl. It wasn’t one of the many turnovers that marred a game that wasn’t likely to be very interesting in the first place, rather it was the NFL’s unique copyright notice, a spacious land-grab of a legal claim as expansive as Miami’s Dolphin Stadium. You’ve seen it dozens of times, but it never loses its Kafkaesque charm, so let’s look at it again:
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.
In other words, the NFL claims for itself just about every possible right to the game, even the right to block “accounts” of it. That would, one imagines, include even a tedious blow-by-blow blog entry written after watching XLI in one’s living room. You can see where a classroom studying copyright law might find this noteworthy.
Seltzer posted the clip—which is clearly fair use and not in any way an “account” about the game itself—to YouTube, blogged about it, and sat back and waited. The NFL apparently complained and YouTube rapidly and rather automatically removed the clip. If you follow the link from Seltzer’s blog you get a YouTube page that says:
“This video is no longer available due to a copyright claim by National Football League.”
Of course this comes in the wake of YouTube’s take-down of 100,000 clips that Viacom claims infringed its copyrights. As News.com reported yesterday:
Two weeks ago, when Viacom demanded that YouTube remove 100,000 videos featuring unauthorized clips of its films or TV shows, some innocent users got caught up in the sweep, said the Electronic Frontier Foundation (EFF), an advocate for the rights of Internet users. In a video posted to YouTube last week, EFF said it wanted to hear from anyone who may have been unfairly blamed.
Two such examples include the removal of a homemade movie of a group of friends eating ribs and a trailer for a documentary about a gay professional wrestler, both of which contained no Viacom copyrighted material, EFF said.
It should be pointed out that the two stories have a non-null intersection in a couple of ways; Seltzer at one time worked as a staff attorney for the EFF.
What makes the YouTube story a bit complicated is that it’s not as if Viacom didn’t have a point. If I watch Jon Stewart on YouTube instead of Comedy Central, Viacom can’t get get credit from its advertisers and if enough people do it, the whole system breaks down (as Immanuel Kant would say, copyright infringment fails the universalizability test). We can note that the entire system of free television paid for by advertising was always a Rube Goldberg contraption held together with fraying twine, dried spit, and inaccurate Nielsen surveys, but that’s really a different issue. It’s the contraption we have, like it or not.
And indeed, on the other hand, when I was in China, Comedy Central was unavailable and YouTube was a lifeline of Jon Stewart segments and other cultural touchstones from the homeland.
Copyright law is always a balance between competing interests and, nowadays, finding the right interface to reflect that balance in the technologies by which we read and view copyrighted works.
Wall Street Journal articles are cited less in on-line debates than those in the NY Times, in my experience, and surely it’s because, at least in part, they are kept behind a thicker, more opaque curtain of copy protection.
iTunes’s copy protection has more holes than the block of cheese in a game of Mouse Trap, yet it serves to deter most people from moving their music around in the ways the RIAA fears (again, whether those fears are rational is another matter).
There’s an article in today’s NY Times saying that “On average, Nielsen found, DVR owners watch 40 percent of commercials that they could skip over — perhaps because they like ads, don’t mind them or simply can’t be bothered.”
Certainly I’m one of them; you have to actually pay attention when you use the fast-forward button, and to get my TiVo remote to skip ahead in 30 second increments takes a little bit of programming that has to be redone ever few weeks. Sometimes I do it and sometimes I don’t. Maybe some kind of implicit balance has been found.
Nonetheless, the general trend in copyright law is to get crazier and crazier, and to become more and more restrictive.
A British court ruled last week that business letters can be protected by copyright. From the UK Register’s account:
Business letters can be protected by copyright and forwarding them to others can be an infringement, the High Court has ruled. The decision could have implications for email communication because the same principles will apply.
As the Register notes, that has implications for e-mail.
In a dispute over roofing slates, the High Court said that a business letter can qualify for copyright protection. Experts say the protection will as easily apply to business emails, which could change the way email is used in business forever.
Which brings us back to Wendy Seltzer. On her blog she’s also posted the letter that YouTube sent her notifying her that it has “removed or disabled access to the following material as a result of a third-party notification by National Football League claiming that this material is infringing.”
You might say, “But Wendy owns that letter.” Not so fast. The back alleyways of copyright law, are already pretty twisted, and this ruling won’t make them any easier to navigate. There’s a big difference between the rights of a letter’s owner and its copyright holder. According to the Harry Ransom Humanities Research Center:
Especially with manuscripts and other unpublished sources, it is important to distinguish between the owner of the document and its copyright holder. The owner may be the copyright-holder, but very often is not. Ownership confers the right to remove, sell or even destroy unpublished materials, but it does not confer the rights covered by copyright law. A letter from Thomas Hardy to Queen Victoria, for example, may be in the ownership of the present Queen of England, but the Queen cannot publish the letter or even reproduce it on her Christmas cards, without the permission of the Hardy estate.
So it’s not at all obvious that Wendy’s posting of the YouTube letter doesn’t violate this new British interpretation of copyright law. And that’s as crazy as anything Rube Goldberg could have come up with.