meta: anyone in the mood for a copyright fight?

Submitted by Brian on September 20th, 2011 at 10:02 PM

So one of those hilariously-corporate-sounding corporations that goes around using the DMCA to get stuff off the internet has hit my youtube account, taking down big chunks of the last couple years of UFR clips.

I believe there's a strong fair use argument here and would like to issue a counter-notice, but that exposes me to a lawsuit so I'd like to know get I'm getting into. I've already emailed the EFF about my situation in the hopes they'll find it to fit their mission, but I know there are lawyers out there: can any of them offer non-binding non-legal disclaimered no one will sue you advice for me?



September 20th, 2011 at 10:10 PM ^

has the time to seek out and destroy UFR clips? What's the pay for a job like that? Seems that money could be better spent, oh, I don't know, feeding starving children or something.


September 20th, 2011 at 10:11 PM ^

I am not a lawyer. Being not a lawyer, you should consider that I am not a lawyer. But in my non-lawyer opinion, I would think it falls under fair use. Did I mention I'm not a lawyer?


September 20th, 2011 at 10:21 PM ^

I have recently taken and passed the bar in IN.  While in law school, I took one course on copyright law (which makes me the farthest thing from an expert), and this would definitely seem to fall under the fair use doctrine.  If you don't find any other takers, I would be willing to do a little research for you.


September 20th, 2011 at 10:24 PM ^

It's fair use because you're using a small selection of the toal broadcast for "comment and criticism."  You could threaten to countersue under DMCA section 512(f) (misrepresentations) claiming they are overreaching and that might get them to back off.

Michael Scarn

September 20th, 2011 at 10:26 PM ^


I'm familiar with UFRs, but not totally sure what clips this references...just individual plays from the every snap? Or something mimicking the picture pages which involves explanation and a form of telestration?

I think fair use in this case would boil down to 2 issues:

1. The clips themselves. Could you reasonably argue that this is a transformative use? If all the analysis lies in the UFR rather than the clip, the hosting on youtube might be difficult to justify because they can be consumed, if you will, without any of the transformative added value you've contributed.

2. How much is used, which affects 2 things.  First, it's effect on the value of the original work, i.e. would someone rather just watch UFR clips than a replay of the game on B1G Network? Secondly, just from a raw percentage perspective, how much is used?  If either a substantial amount or crucial parts are, we have a problemo.  If it's just something here or there, shouldn't be an issue.  

Then again, I'm just a law student who's spending his time on MGoBlog right now instead of reading for class, so I wouldn't trust anything I have to say. 1-800-CALL-SAM.

Gulo Gulo Luscus

September 20th, 2011 at 11:27 PM ^

thanks for putting up a theory at least.  now for some non-lawyer, non-mgoblog mod commentary.

1. is the problem about "transformative added value" specifically related to being hosted by YouTube?  would merely moving the videos to owned/leased server space be enough?  or would it be necessary to actually put analysis into the clips themselves?

2. i'm not sure what is available on youtube or elsewhere, but the videos on UFR are typically short clips (1 play) and probably do not add up to anything constituting a "substantial amount" of the game.  "crucial parts" on the other hand, sounds problematic.


September 21st, 2011 at 12:53 AM ^

If #1 is an issue, could he skip hosting it on a different site and simply mark them as hidden or whatever it is where you can only see it if you get a link to it, so it strongly implies that you would get to it via the UFR?  Or if not, would simply copy/pasting the text from that line of the UFR into the description possibly be sufficient?

Michael Scarn

September 21st, 2011 at 2:31 AM ^

1. If the videos themselves weren't available independent of the analysis and commentary, this would help.  The fact that a copy without any transformation is available for viewing is where this crosses from transformative to derivative, I would say. But as long as accompanied by analysis, actually altering the clips themselves shouldn't be necessary.

2. The reason this is difficult to analyze is because (as my understanding goes) fair use issues are often based heavily on the facts rather than competing authorities.  Which is also part of what would possibly make this an ugly fight if the copyright claimant is feeling litigious - a quick resolution would be unlikely. 


September 20th, 2011 at 10:27 PM ^

but not an IP lawyer. I kmow enough about copyright law to know when to call an IP lawyer. and you need to call one.
<br>Fair use depends on many circumstances. Whether the use is educational or commercial makes a difference. The blog and UFRs arguably is commercial -- its the source of your income, no? But there are several factors and how a court will resolve them probably requires some legal research.
<br>Or, just destroy their resurrection hub and they'll be forced to negotiate.


September 20th, 2011 at 11:01 PM ^

... and I agree with this post.  You need an IP lawyer.  (I have only minimal experience with it.)  That said, once you determine the legal strength of your potential counter-claims or defenses, you should also think about these business factors:

Many legal issues, presumably including "fair use," are fact intensive in their outcome.  What that means is that, in order to win or lose in court, you will first have to undergo extensive discovery and legal fees associated with it.  Threatening companies not only think about that, it is often the main reason they take actions against small companies.

They may think, "even if they could eventually prove I am wrong, a blogger is not up for the fight."  That is why (I think) the DMCA provides for atorney fees if you win.  But, that provisions is not so useful when winning is thousands of dollars and years away.  They may presume you won't actually pay attorneys on the hopes you will get those fees back one day, maybe.

So, go with an IP attorney, but from a business perspective, go with a name they might recognize (or with good credibility in IP) and they will know you are serious about this, which is important.  Hopefully, you can find a UM grad in IP who is looking to add to his/her pro bono hours.


September 20th, 2011 at 11:14 PM ^

Crazy idea, haven't though this through, though.  But what I Brian could strike some sort of deal with the BTN and ESPN to use these clips for UFR, as it would give them hits to whatever he's linking.  Of course, again that would take lawyers, fees, contracts, etc., things Brian probably doesn't want to deal with/have the funds to deal with.


September 20th, 2011 at 11:27 PM ^

Good point, my only thought was that he would be giving them hits to plays that they "own."  But I guess they already own the whole thing so people can just watch the whole broadcast.  I was thinking his "clips" could some how give them hits, but I am no way computer saavy so I cannot even fathom that.


September 21st, 2011 at 9:05 AM ^

Continuing in this vein of possible future action, wouldn't it be more advantageous for Brian to work directly with the UM Athletic office to get the rights to get his own footage from the games therefore bypassing the legal rights of ESPN/BTN to their own production of the game.  My thought is that they are entitled to protect those assets through some kind of contractual relationship but if Brian/mgoblog get's the right to take their own video footage then there's nothing they can do.

Edit: Of course, you could just finish reading the whole thread (unlike myself) and already come across this idea but whatever, I do what I want.


September 20th, 2011 at 10:27 PM ^

Isn't it like Girl Talk who mashes up 15 seconds of a song with 5 other songs and creates one song?  I mean it's 15 seconds of a game?  And did Wolverine Historian get his shit taken down too?


If so..  this is a sad day for the interwebz.  


September 20th, 2011 at 10:29 PM ^

I've found it is always best to begin the conversation by asking, "Are you familiar with the legal term, 'Suck my dick'?"

Works every time.

PS, I'm totally not allowed to practice law any more.


September 20th, 2011 at 10:39 PM ^

Question: What types of uses does the fair use doctrine protect?

Answer: The language used by Congress in Title 17, Section 107 specifically lists ?criticism, comment, news reporting, teaching, scholarship, and research? as examples of uses that might be protected under fair use. However, this list is non-exhaustive, and therefore a use not covered in one of the categories could nonetheless be successfully defended as a fair use. Conversely, not every use that falls within the listed categories will necessarily be found by a court to be fair. For example, not every use of another's work for research or educational purposes will be held to be a fair use. See Encyclopaedia Britannica Educational Corp. v. Crooks, 542 F.Supp. 1156 (W.D.N.Y.1982).

In considering a fair use defense to a claim of infringement, a court will focus its inquiry on the specific facts of the individual case. Therefore, it is very difficult to predict with accuracy what a court will do until it engages in the inquiry. A court will almost always use the four factors listed by Congress as a guide in its inquiry. The four factors listed are:

This factor considers whether the use helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public. The defendant must show how a use either advances knowledge or the progress of the arts through the addition of something new. The more transformative the use, the more likely it is to be fair, whereas if defendant merely reproduces plaintiff's work without putting it to a transformative use, the less likely this use will be held to be fair. Further, the more commercial defendant's use, the less likely such use will be fair.

The more creative, and less purely factual, the copyrighted work, the stronger its protection. In order to prevent the private ownership of work that rightfully belongs in the public domain, facts and ideas are separate from copyright?only their particular expression or fixation merits such protection. Second, if a copyrighted work is unpublished, it will be harder to establish that defendant's use of it was fair. See Salinger v. Random House, Inc., 650 F. Supp. 413 (S.D.N.Y. 1986), and in New Era Publications Int'l v. Henry Holt & Co., 695 F. Supp. 1493 (S.D.N.Y. 1988). One commentator noted that "the original author's interest in controlling the circumstances of the first public revelation of his work, and his right, if he so chooses, [is to not] publish at all." While some argue that legal protection of unpublished works should come from the law of privacy rather than the law of copyright, Congress amended the Fair Use doctrine to explicitly note, "The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors."

In general, the less of the copyrighted work that is used, the more likely the use will be considered fair. If, however, the defendant copied nearly all of, or the heart of, the copyrighted work, his or her use is less likely to be considered fair. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985).

This factor is generally held to be the most important factor. See Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985). This factor considers the effect that the defendant's use has on the copyright owner's ability to exploit his or her original work. The court will consider whether the use is a direct market substitute for the original work. The court may also consider whether harm to a potential market exists. The burden of proof here rests on the defendant for commercial uses, but on the copyright owner for noncommercial uses. See Sony Corp. v. Universal City Studios, 464 U.S. 417, 451 (1984). It is important to note that courts recognize that some market harm may come from fair uses such as parodies or negative reviews, but that such market harm does not militate against a finding of fair use.


September 20th, 2011 at 10:48 PM ^

Your corporate friends might be liable for damages if you end up spending money on this and they did not consider fair use.  A federal district court in CA ruled that an entity such as theirs was liable for damages when it didn't consider fair use.  Lenz v. Universal Music Corp, 572 F. Supp. 2d 1150 (N.D. Cal. 2008).


My barely-educated conclusion:  What you do is probably fair use.  However, you want to seek out a lawyer who will really take a look at this for you because it seems likely that you'll run into this again.  Also, my brief foray into fair use over the past several minutes suggests that it's not a black and white issue.  Finally, you want to never be involved in a lawsuit. 

Disclaimer: please note that my advice should not be taken by anyone ever for any reason. I am in fact a gorilla that has been taught how to type on a computer by a zookeeper.  I'm off to eat a frozen watermelon right now.