Copyright Battle Brewing Between NASCAR and YouTube

A brutal crash sends a car flying toward spectators in NASCAR's Nationwide Series DRIVE4COPD 300 at Daytona.

Perhaps the biggest news coming out of Daytona this past weekend aside from 50 Cent’s failed attempt to kiss Erin Andrews, was that a crash in the NASCAR Nationwide Series injured 28 spectators.

Instantly, everyone who was not watching the race live (i.e. the entire nation), turned to YouTube for footage of the devastating wreck. But YouTube notified users that it had pulled videos from the race at the request of NASCAR for fear of committing copyright infringement. These “cease and desist” cat-and-mouse games over copyright violations happen all the time on third-party content websites like YouTube.

This is because websites like YouTube enjoy the safe harbor provisions of Section 512 of the Digital Millenium Copyright Act, which shields content providers from liability stemming from users’ infringing activities.

Specifically, Section 512(a) provides that

A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider’s transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if
(1) the transmission of the material was initiated by or at the direction of a person other
than the service provider;
(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;
(3) the service provider does not select the recipients of the material except as an
automatic response to the request of another person;
(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and
(5) the material is transmitted through the system or network without modification of its content

Normally, when an entity as large and as wealthy as NASCAR says a user is violating its copyrights, the infringing content is removed and that is the end of the story. What makes this Daytona crash so unique is that the alleged copyright violator fought back in a rarely-used provision of Section 512 (and YouTube appears to be supportive). Section 512(g)(3) explains that once a video is pulled for alleged copyright infringement, the uploader must file a counter-notification to have YouTube reinstate the video. This process can only be used on content believed to have been misidentified or removed by mistake. It usually takes 10 days and requires sending personal information to the person making the copyright claim.

To be effective, a counter-notification must be a written communication provided to the service provider’s designated agent that includes substantially the following:
(A) A physical or electronic signature of the subscriber.
(B) Identification of the material that has been removed or to which access has
been disabled and the location at which the material appeared before it was removed or access to it was disabled.
(C) A statement under penalty of perjury that the subscriber has a 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.
(D) The subscriber’s name, address, and telephone number, and a statement that
the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person

Although it appears NASCAR will not be easy to defeat, this incident brings to light the extremely broad rights that leagues and teams assert through adhesion contracts on the back of event tickets. Does NASCAR or any other league really own every sight, sound, and image that comes from its events? For now it seems that they do until more and more individuals fight back with the help of Section 512.

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