Content that actually belongs on YouTube

While the 1998 DMCA was intended to limit the threat of Napster, there have been ongoing complaints about its excesses.

One of the major areas of controversy was the (likely intentional) effect of DMCA of swinging back the pendulum against established consumer “fair use” rights. The case law (and policy tradeoffs) around fair use are complex, but two important examples of fair use exceptions are for public policy debates and for scholarship.

The potential of the DMCA to restrict established fair use rights has been highlighted by law school instructor Wendy Seltzer, who deliberately baited the NFL to prove a point. Seltzer used to work for the EFF — a group promoting absolutist cyberlibertarian positions that ignore other equally important public policy goals — but is now affiliated with Harvard’s Berkman Center, which combines advocacy with serious scholarship.

To make her point, Seltzer posted to YouTube a video clip of the now-familiar NFL disclaimer:

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.

The NFL demanded that the clip be deleted, which it was; Seltzer sent a Safe Harbor counter-notification provided by the DMCA, and the clip came back up. That should have been the end of it, Seltzer says:

when I sent my counter-notification to the first NFL notice, on February 14, YouTube forwarded it on to the NFL per the DMCA's specification. 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.

Instead of seeking a court determination (which Seltzer contends is necessary), the NFL just asked (and succceed) in getting YouTube to pull it again. Seltzer recounts the saga in her blog, as do the AOL sports blog and the WSJ legal blog.

The publicity stunt spotlights that online copyright issues are not just big corporations disseminating commercially valuable content for free. If nothing else, this is helping to bring the policy debate to call attention to the impact on consumer interests.

There are limits to such interests. Many of the 22-year-olds in my classes think they have an unlimited right to download free music forever — not because the law allows it, but because everyone gets away with it so it has become an entitlement (like downloading term papers from the Internet). The opposite extreme is the RIAA suing grandmothers or even the dead.

Right now any business model is at risk if it involves professionally-generated content, either directly or indirectly. As Walt Mossberg observed, legal clarity is sorely needed here for consumers, but this is also something sorely needed by business. The purpose of business regulation is to set rules for fair competition, and right now no one knows what the rules will turn out to be when they are interpreted in a court of law. A lot of litigators are going to get rich off of these ambiguities, an obvious waste of economic resources.

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