Wall Street Journal, March 28, 2007
By Peter Lattman

In the continuing copyright kerfuffle around YouTube, one law professor bent on proving her point is taking on none other than the National Football League.

Wendy Seltzer, a visiting professor at Brooklyn Law School, picked the NFL, a hyper-vigilant protector of intellectual property, to highlight what she sees as the clumsiness of the Digital Millennium Copyright Act's "notice-and-takedown" provisions. Google Inc., YouTube's owner, has argued that the DMCA immunizes YouTube from liability for its users' copyright infringement if it takes down video when notified of copyright claims.

To make her case, Ms. Seltzer posted a video clip of an NFL game during which announcers read the NFL's copyright notice — "Any rebroadcast, retransmission or other use of this telecast without express written consent..." What ensued was more akin to a tennis match than a football game. The NFL sent YouTube a takedown notice. YouTube removed the clip. Ms. Seltzer sent YouTube a counter-notice, asserting that the clip fell within the "fair use" provisions of the copyright law because she was using it for educational purposes. YouTube re-posted the clip. The NFL sent YouTube another takedown notice. YouTube again yanked the clip.

Ms. Seltzer finds this "DMCA dance" absurd. "If...YouTube is threatened with takedown notices every time my speech includes fairly used copyrighted material," says Ms. Seltzer, "pretty soon I find my ability to engage in fair use shut down."

NFL spokesman Brian McCarthy says posting the clip did not constitute fair use, in part because the clip contains game footage and because the context in which it was posted wasn't clearly educational.

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