Is the NFL Abusing Copyright Law?

About a month ago, we wrote about Brooklyn law professor Wendy Seltzer posting a clip of the NFL's copyright notice to YouTube, only to watch the NFL send YouTube a Digital Millennium Copyright Act (DMCA) takedown notice. YouTube responded by removing the video.

Seltzer, however, was far from finished with this matter. In an attempt to demonstrate the DMCA process to her students -- and to the public at large -- she sent a counter-notification to YouTube, claiming that the clip was being used for critical and educational purposes and thus met Fair Use guidelines for non-infringing use of a copyrighted work. As a result, YouTube agreed with her counter-claim and put the video clip back online.

The NFL found out about this, however, and sent YouTube another takedown notice. YouTube complied and removed the video again.

One problem, though -- the second takedown notice may have been illegal. According to Seltzer:

Since my counter-notification included a description of the clip, "an educational excerpt featuring the NFL's overreaching copyright warning aired during the Super Bowl," it put the NFL on clear notice of my fair use claim.

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."

What? You mean the NFL might have actually broken the law? And they have the nerve to tell the Cincinnati Bengals to get their house in order? Horrible.

The NFL been vigilant -- perhaps too vigilant -- in getting its video clips scrubbed off YouTube, and this time around, they may have opened themselves up to a rather large liability. The only question now is how far Professor Seltzer go in pursuing this matter. Tons of bloggers love to jump on copyright abusers, and the last thing the league needs is someone as loud as Cory Doctorow comparing Roger Goodell to Pacman Jones.