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Fighting YouTube for ‘Fair Use’

Most professors can point to a few seminal moments in their careers, like the publication of that first paper or a promotion from the ranks of the adjuncts, that signaled their arrival as serious scholars. Perhaps, in the age of YouTube, this will become another such moment: A professor's first DMCA takedown notice.

Since its passage nearly a decade ago, the Digital Millennium Copyright Act has allowed copyright holders to demand that their work be taken offline if it has been posted without their permission. According to digital-rights activists, the holders wielding those notices often take a dim view of fair-use doctrine.

Wendy Seltzer, a visiting assistant professor at Brooklyn Law School, ranks among the fiercest defenders of fair use: She was previously a lawyer with the Electronic Frontier Foundation, a group that has sought to liberalize copyright law. So it was more than a little ironic when she received a takedown notice for her first foray onto YouTube.

Ms. Seltzer's offense, it seems, was posting a brief snippet from the Super Bowl — specifically, the NFL's standard copyright warning:

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.

The professor says she posted the video to show her students "how far copyright claimants exaggerate their rights." But YouTube quickly removed the video and warned Ms. Seltzer in an e-mail message that "repeat incidents of copyright infringement will result in the deletion of your account."

Ms. Seltzer says her YouTube post falls well within the boundaries of fair use, and she has sent a counternotification to the Web site arguing that the clip should be reinstated. Whatever YouTube decides to do, the saga will be a great lesson for Ms. Seltzer's students in the confusing and often highly subjective world of copyright law. –Brock Read

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