The Wall Street Journal’s law blog has covered Professor Wendy Seltzer’s disupte with the NFL over her YouTube posting of a game clip showing the NFL’s copyright notice. The NFL sent YouTube a DMCA take down notice, Professor Seltzer objected, and the NFL sent another take down notice that YouTube apparently complied with.
For those not familiar with the notice/take-down provisions of the DMCA, the statute gives service providers like YouTube the incentive to cooperate with copyright holders and users by granting limited immunity from third party copyright infringement claims if the service provider complies with certain requests. If a copyright holder asserts an infringement claim, the service provider has to take the material off the internet or disable access. If the user objects, the service provider needs to put the material back up. If the copyright holder still objects, it can put the service provider in the position of having to take the material down again if it files a lawsuit against the primary infringer. This procedure makes sense. If both the copyright holder and the user are adamant about their positions, service providers ought not get “caught in the middle.” The appropriate forum for settling the dispute is in court.
The NFL, in my opinion, has a really weak case against Professor Seltzer. I think they know it too, because they didn’t go through with step 3 and sue Professor Seltzer. Instead, they filed a new step 1 complaint hoping to force YouTube to take the material down. Here is the argument that the NFL spokesman, Brian McCarthy, made about this action:
“The fact that we got a copy of the counter-notice asserting the professor’s fair use argument does not make it illegal for us to send another notice. A notice under 512(c)(3)(A)(v) only requires a good faith belief that the use of the material ‘is not authorized by the copyright owner, its agent, or the law.'”
This is tricky technical legal maneuvering that horribly subverts the DMCA process. If the NFL is right, then the 3 step process outlined above is destroyed, because copyright holders could keep “hitting rewind” and never have to make their accusations of copyright stand up in court. The NFL would get all the benefits of an injunction against Professor Seltzer without ever satisfying the legal requirements for one – no complaint, no brief, no oral argument, no court order. I can understand why the NFL wants the law to be interpreted that way, but it makes no sense.
Unfortunately, the copyright law does not provide a sanction against copyright holders who abuse the DMCA process this way. Section 512(f) of the copyright code does provide one against parties who knowingly misrepresent that infringement has occurred, but that isn’t what the NFL is doing (although they’re close – I don’t see what decent argument they have that infringement exists). Frankly, I don’t think Congress ever thought that a copyright holder would file redundant complaints as the NFL has. The problem we have is that it costs the NFL nothing to pursue a repeat initial notification strategy. The notifications are inexpensive, and they get their way without any prospect of losing something. An interesting solution would be an action similar to abuse of process that users could bring against copyright holders for repeated DMCA filings that are never seen through to an actual lawsuit. Perhaps the prospect of damages would make IP holders think more carefully about the validity of their claims before repeatedly asserting them.
For some reason, my comments don’t usually come through on Madisonian, but perhaps Congress expected that if the ISP received a notice, a counter-notice, and then the same notice about the same material, the ISP would be free to rely on the prior counter-notice? Part of the problem might be the way that ISPs also don’t expect redundant notices and simply comply automatically.
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