Tackling Fair Use

In late 2010, the NFL began to air a short promo during football games, which features grainy cell phone video of home audiences celebrating.

The video’s source footage, harvested from YouTube, includes scenes where members of the home audience pointed their cameras at their television screens during a game, in apparent violation of the NFL’s licensing restrictions.

Typical NFL broadcasts include the statement:

“This telecast is copyrighted by the NFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited.”

The promo illustrates the arbitrary and capricious nature of corporate attitudes towards the distinction between “fair use” and “copyright infringement.”  Commercial organizations such as late night talk shows, news broadcasts, and marketing firms routinely make use of footage that individuals produce and distribute on services like YouTube.  The individuals who originate this footage are rarely credited, even in commercial broadcasts.  At the same time, when individuals post commercial content to YouTube, that content is routinely removed.

Since the passage of the Digital Millennium Copyright Act of 1998, private firms have had a powerful tool to remove content from the Internet.  The DMCA provides a legal framework for the issuance of a “takedown notice” which compels an offending party to cease the distribution of infringing content.  This law has, however, been widely abused by businesses, often targeting small operators who don’t have the resources to determine whether a takedown notice is valid.

In a Spring 2009 statement issued through the Telecommunications Carriers Forum, Google claimed that 57% of the DMCA takedown notices it received were sent by firms seeking to frustrate competition, and that some 37% of the received takedown notices were not valid copyright claims.

Another noteworthy feature of this promo is the use of proprietary CBS trademarks in the status bar and on the field, as this spot is broadcast by competitors to CBS, such as Fox.

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