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Summary:

After a fan posted a video of a horrific crash at a NASCAR event, the organizer removed it claiming copyright infringement, but Google over-ruled the company — an example of a decision that happens all too rarely.

At a NASCAR event on Saturday, debris created by a serious crash flew into the stands and injured a number of fans. As with many such events, a bystander caught the disaster on video and quickly uploaded it to YouTube, but within a matter minutes it was removed due to a copyright claim by NASCAR. It seemed like yet another case of a commercial entity taking advantage of copyright law to smother free speech — until Google reinstated the video and said NASCAR had overstepped its bounds. In this case at least, the search giant did the right thing.

The NASCAR crash followed much the same pattern so many news events do now, in the age of real-time and social media: moments after the crash occurred, there were multiple eyewitness photos and videos of the incident, including one particularly horrific one captured by university sophomore Tyler Andersen, who was sitting just to the left of the section that was hit by the debris — including a tire that flew off the race car in question. Soon, a link to the video on YouTube was racing through Twitter and other channels.

In this case, Google decided to over-rule NASCAR

Suddenly, however, the video was no longer available, and in its place was a standard YouTube message about the content being removed because of a copyright claim by NASCAR. This raised a host of questions for those who were trying to access it, including: How could the racing entity remove the video so quickly? Why didn’t YouTube protest that it should be protected by the principle of fair use, since it was a news event? And how could NASCAR claim that it had copyright over a video that was created by a fan?

The latter question was answered hours later when YouTube reinstated the video and released a statement saying that partners such as NASCAR are only allowed to remove content that breaches their copyright, and the content in question didn’t pass that test (even though NASCAR asserts in the fine print when you buy a ticket that it owns everything fans produce while at an event). Said the YouTube statement:

“Our partners and users do not have the right to take down videos from YouTube unless they contain content which is copyright infringing, which is why we have reinstated the videos.”

The other two questions people had are even easier to answer. In a nutshell, Google provides its YouTube partners with an easy way to have content removed almost immediately: it’s a tool called Content ID, and it’s essentially a back-door to the YouTube content-management system. When a company like CNN or NBC or some other partner sees their TV shows or news clips being shared on YouTube without permission, they can submit a form and have it pulled down.

One of the main reasons why Google does this — and why it doesn’t bother (except in extreme cases) to protest or demand an explanation for takedown requests — is that the Digital Millennium Copyright Act or DMCA only gives services like YouTube “safe harbor” from copyright-infringement charges so long as the company acts quickly when it receives a takedown notice. In effect, there is virtually no leeway for protests or attempts to get a provider to defend their demands.

As a number of observers — including Jillian York of the Electronic Frontier Foundation — noted during the NASCAR incident, this is just one of the many ways in which the DMCA actually fosters bad behavior, or at least behavior that seems bad if you believe in free speech and freedom of the press. The fact that Google acted quickly to put the content back up is admirable, but it shouldn’t have to do this, and there are no doubt many other important cases in which it hasn’t that don’t involve something as attention-getting as a race-car crash.

And as Jason Pontin of MIT’s Technology Review pointed out in a recent essay on free speech in a digital era, our speech is to a large degree controlled by private corporations like Google and Twitter and Apple, and in many ways we are still coming to grips with what that means for us as a society.

Post and thumbnail images courtesy of Flickr user Petteri Sulonen

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  1. I agree that it was great to see Google/YouTube restore the video. But for the independent content creators out there, it’s too little too late. The video already missed the news cycle and had this creator been a journalist he would have lost out on revenue and put at a disadvantage by larger competitors.

    I wish YouTube would respond to ContentID counterclaims as fast as it does complaints. I had a video’s revenue frozen for 30 days as Fox News tried to claim NASA footage as their own. They simply ran down the response clock as opposed to doing the right thing and releasing the video.

  2. What’s even worse is that this is clearly not a case of copyright infringement. NASCAR know it. They just tried to get the video down because they didn’t want people to see what happened – presumably to protect future ticket sales? Abhorrent.

    1. And the worst part is they won’t be penalized for abusing the added “power” they have been granted by YouTube.

  3. Abuses like this could be eliminated if Congress would pass legislation that said terms printed on tickets to events do not constitute a legal agreement. It should also be expanded to terms printed on software packages. If you want to enter into a legal agreement with a customer, you should be forced to obtain an explicit agreement, with a signature, not a statement “by purchasing this ticket you agree to our terms”.

    Fine print is a weapon of mass economic abuse.

  4. alexmedawayhasleftthebuilding Sunday, February 24, 2013

    lol copyright. no one cares about your stupid “entertainment” consisting of going fast and turning to the left. people want to know about venue safety and whether their loved ones got hurt.

    obviously people who want to watch the whole race are gonna watch your hd broadcast. there’s no competition from cellphone clips (even if those were live). there’s only assholes abusing the people.

  5. Antone Johnson Sunday, February 24, 2013

    In fairness, there are many video-sharing sites (theoretically an infinite number), most of which are nowhere near as cozy with the Hollywood content distributors as Google. This sort of incident is an opportunity to remind aspiring citizen-photojournalists of that fact.

    Is there even a study or survey that’s been done to show which sites are most uploader/fair use-friendly? We should all know by name the best YouTube alternative that will take its own sweet time (within the limits of the DMCA) responding to this kind of specious take-down notice and give the contributor maximum latitude under law to file his or her own counter-notification. That’s a hell of a lot easier than getting Congress to change the law.

    1. Finding alternatives is all well and good but the viewers (and the revenue) are on YouTube. It needs to be a more level playing field.

      1. All well and good but this isn’t like the days of network TV. A video clip posted on Vimeo, DailyMotion or whatever other site can easily go viral and be reposted to many other sites. Something this newsworthy would be propagated by tweets, Facebook posts, you name it. People need to be reminded that alternatives to YouTube exist.

    2. I agree with Antone. Further this, it is becoming even easier sand cheaper to run your own channels with the like of YouTube and so whilst free speech is always going to be an issue with the large corporations, the is not yet solely dependent on these organisations and it is essential for content producers of all scale and types to remember this and look outside of the main stream as well so that we do not hand over power to a few.

    3. “We should all know by name the best YouTube alternative that will take its own sweet time (within the limits of the DMCA) responding…”

      YouTube did what it is REQUIRED to do under the DMCA, to remove the video ASAP after receiving a claim from the copyright owner. NASCAR legally does have a copyright claim in this case.
      The video was reinstated because BOTH parties quickly learned (at internet speed) that the removal was more damaging to BOTH their corporate rear-ends than anything in the video.

      1. The law requires that content be taken down “expeditiously” if it is the subject of a proper take-down notice under Section 512 of the Copyright Act. It doesn’t define “expeditiously,” and in practice, that often means a couple days (or more). There’s nothing about “ASAP” in the act.

  6. Antone Johnson Sunday, February 24, 2013

    Also, if I were NASCAR’s counsel, NFW would I sign a declaration of “good faith belief that there is no legal basis for the use of the materials complained of” as required by section 512(c)(3)(A)(v) on these facts. Between fan copyright ownership and newsworthiness fair-use arguments, it’s about as bad-faith as they come.

  7. @keninca, requiring a signature sounds like a good idea, but the problem is many people would just sign and not read it. It might be be better in the long run if people become personally responsible to the point where they refuse bad contracts instead of just going along with a wink and nod. Attempts for a legal remedy can help bring the issue to a greater audience, and maybe we would get to a point where we wouldn’t need more laws.

    1. jak, requiring a signature will not be feasible for most sales. It would be complicated for on-line purchases, and would slow down entry into live events. Also, what happens when the buyer is under age? Do you just not sell to them?

    2. keninca, Good points. I don’t object to the law you proposed making terms printed on tickets not constitute a binding agreement, but then we get into defining a ticket. I am not a lawyer, does buying a ticket really bind you to it’s terms in the same way a signed contract does? Google’s lawyers seem to think it does not since they denied the takedown.

      Could this problem be solved by removing laws (starting with the DMCA)?

  8. Hats off to Antone, he nailed it. YouTube and Google are corrupted by the partners with which they sleep – Hollywood and Congress. Other video sharing sites will fill the void for full exposure of life events. China / U.S. – U.S. / China same coin different sides.

  9. Prashant P Patil Sunday, February 24, 2013

    News are news until and unless it not meant for commercial purpose no one have right to remove any content’s as “news” info to the world.

  10. NASCAR owns the rights to any audio/video/images of the event.It’s printed on the back of the ticket to the event along with the disclaimer about you accepting any risks.

    *NASCAR’s statement*
    “The fan video of the wreck on the final lap of today’s NASCAR Nationwide Series race was blocked on YouTube out of respect for those injured in today’s accident. Information on the status of those fans was unclear and the decision was made to err on the side of caution with this very serious incident.” -Steve Phelps, NASCAR SVP/CMO

    There are issues here besides copyright like common decency, and respect to the people injured and their families. The families of the injured fans may not have been able to be reached yet to be notified of the condition of their family member.

    1. Meanwhile, NASCAR is releasing its video of the incident to global news services – probably at a price. It made the BBC News here in the UK. I may sound cynical. but controlling media access to the available footage only increases NASCAR’s opportunity to control the story.

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