Infringement Nation and the NFL: Copyright Reductio Ad Absurdum

By Dave Wieneke | in Copyright Law, This can't be serious | 4 Dec 2007 | 4 Comments

Can you imagine a more certain way to create a culture of lawlessness than to inspire a popular contempt for law? Few things are more likely to provoke contempt than to hand out rights so broad that to average people they are reduced to absurdity.

That’s what University of Utah Law Professor John Tehranian illustrates in his upcoming Utah Law Review article (PDF). He observes that copyright law is more prominent in public awareness than ever, yet the chasm between copyright law and social norms “is so profound that on any given day even the most law-abiding American engages in thousands of actions that likely constitute copyright infringement.”

Tehranian calculates the liability for a “person who, over the course of a day, infringes the copyrights of emails, articles, an architectural rendering, a poem, photographs, an animated character (in tattoo form), a musical composition, a painting innocently captured in the background of a photograph, and other offences totalling $12.45 million in potential liability, to say nothing of criminal charges.

While the examples are perhaps magnified for illustrative purposes, as a corporate marketer, I work with a number of these issues with regularity. That these rights go unenforced doesn’t lessen their effect on the public mind, or their chilling effects on legal departments.

One area Professor Tehranian omits from his illustration is any discussion of NFL football.

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. 

Really? Yes, the NFL “prohibits” anyone from even describing its games. By placing the self-asserted prohibition immediately after a copyright notice, it conveys the false impression that these rights are provided in gross by copyright law. It denies that fair use could be applicable by anyone, pretty much ever.

Professor Wendy Seltzertested this claim by posting a clip of broadcast video including the presention of this statement on YouTube. She specifically noted in her posting that this was done as part of instructing a course about the Fair Use clause of Copyright Law. In less than a week, the NFL had served a takedown notice, and YouTube complied with the request.

YouTube restored the posting after Seltzer provided a counter-notification claiming fair use. At that point the posting should have stayed up until the matter could be litigated. Unfortunately, the NFL continued to file takedown requests on the same material, which under the DMCA is a basis for a punitive damages claim. Coverage of this story and the NFL’s response is posted in the Wall Street Journal‘s Law Blog.

Do you have an example of copyright law run amuck?  Please post it, or your thoughts on this issue, here.