The NFL has violated the DMCA, ignoring the law’s dispute resolution system and sending a second takedown notice to YouTube demanding that it censor Wendy Seltzer’s clip from the Superbowl. Wendy, a former EFF lawyer who founded the Chilling Effects project and now teaches at Brooklyn Law, grabbed a clip of the NFL’s ridiculous copyright warning from the Superbowl and posted it to YouTube. The NFL sent a takedown notice to YouTube, Wendy sent a counter-notice, and now the NFL is supposed to go to court to pursue its claim.
But instead, the NFL just sent another takedown notice — something that is illegal, “knowingly materially misrepresent[ing] … that material or activity is infringing.” Of course, YouTube took the material down anyway (they have a pattern of sucking up to rightsholder groups instead of standing up for their users), showing that the weak, ineffectual user protections in the DMCA are routinely ignored by rightsholders and ISPs.
The DMCA way for NFL to challenge that, per 512(g)(2)(C), would be to “file[] an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material,” which they haven’t. Sending a second notification that fails to acknowledge the fair use claims instead puts NFL into the 512(f)(1) category of “knowingly materially misrepresent[ing] … that material or activity is infringing.”
If the NFL deigned to respond, I expect they would argue something like “the volume of material is so high, we can’t possibly keep track of all the claims of non-infringement. Our bots are entitled to a few mistakes.” But if they’re not able to keep track of the few counter-notifications they’ve received (the YouTube URL and page stayed the same at all times it’s been up), how can they demand that YouTube respond accurately and expeditiously to all the DMCA notifications they send, or worse, filter all content as Viacom is demanding?
See also:
NFL says don’t copy our copyright warning
Chilling Effects founder takes on DMCA and wins