March 8th, 2007
Counter-notification intelligence (or, getting your wrongly removed clip back on YouTube)
Lawyer, assistant law professor, and Chilling Effects founder Wendy Seltzer chronicles the process of combating an overly aggressive DMCA takedown notice, and gets her initially removed YouTube clip, a Superbowl excerpt highlighting the NFL's copyright notice but including several seconds of game play, restored. Nothing like coming out swinging.
From Wendy as it happened:
- 2/8/07, My First YouTube: Superbowl highlights or lowlights: "Let's see whether the video, clear fair use, gets flagged by a copyright bot."
- 2/13/07, My First DMCA Takedown: "Their copyright bot didn't seem to see the fair use in my educational excerpt, so YouTube just sent me their boilerplate takedown. Time to break out that DMCA counter-notification."
- 2/15/07, DMCA Saga Act II: Counter-Notification: "So, having received a mistaken DMCA notification, I sent my counter-notification to YouTube, generated with the Chilling Effects counter-notice generator. 512(g) instructs the ISP to replace the material in 10-14 business days."
- 3/06/07, We Have Put-Back: Super Bowl Warnings Back Online:
I'm left wondering how many other fair users have gone through this process. On Chilling Effects we see many DMCA takedowns, some right and some wrong, but very few counter-notifications. Part of the problem is that the counter-notifier has to swear to much more than the original notifier. While NFL merely had to affirm that it was or was authorized to act on behalf of a rights-holder to take-down, I had to affirm in response that I had "good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled." A non-lawyer might be chilled from making that statement, under penalty of perjury, even with a strong good faith belief.
Thus was the educational value of the original clip amplified when Wendy stuck to her guns. Terrific that she got to illustrate use of the Chilling Effects counter-notification generator — another glimpse of/step toward the future of legal interminglings. (Via Marty Schwimmer.)
Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law. See her full profile and disclosure of her industry affiliations.
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