Dan Lewis

Did NASCAR Admit to a Flagrant Violation the DMCA? I Say No

Background:

• NASCAR had a bad accident this weekend where a car exploded and stuff — tires, metal, etc. — went flying into the stands. People got hurt, some very badly.
• A fan took a video of the accident and posted it to YouTube.
• NASCAR used the DMCA to take down the video.

NASCAR explained what happened to the Washington Post, here. What they said is a bit contradictory, but here are the two parts I want to focus on.

One:

In an interview Tuesday afternoon, NASCAR Vice President of Digital Media Marc Jenkins made clear one point: “This was never a copyright issue for us,” he said. Nor was it a censorship issue. The matter related to the fans involved in the incident. “We blocked it out of respect for those injured,” says Jenkins.

And two:

As Jenkins explained, NASCAR owns the rights to video shot at the track but “we don’t enforce the guidelines unless the content is used commercially. … We do proactively go after pirated video of the television broadcast, but that’s the only time we use it.”

Dan Gillmor and I conversed on Twitter. He thinks that NASCAR, given the above (and the rest of the stuff I omitted — I don’t know exactly what sentences he’s relying on), “admits flagrantly violated the law” in taking down the video. I disagree. I don’t see an admission here. ¹

Taking the second quote first, NASCAR believes it owns the rights to the fan’s video. They used their copyright of the video, as stated in the first quote, to require YouTube to remove the video. Their reasons for doing so — censorship, economic, because a Martian told them too, or to protect the privacy of potential victims — are irrelevant to their power to do so. The DMCA only requires that your takedown notice swear under penalty of perjury that you own the rights to the content; it doesn’t require you to explain why you want that particular piece of allegedly copyrighted content removed from the third party’s service.

While Jenkins also says (in the first quote) that “this was never a copyright issue for us,” I think he means to say that “this was never an economic issue for us.” In other words, NASCAR wasn’t trying to take down the video so they could sell their own crash footage. The other interpretation — one which suggests that NASCAR couldn’t lawfully remove the video — is entirely inconsistent with the second other quote. On the other hand, the rest of the first quote is consistent with the second. NASCAR believes they could have taken the video down for any reason or no reason at all.

If you credit NASCAR’s words here as honest — and I am doing that, but again, solely for the purposes of determining whether there’s an “admission” here — NASCAR didn’t violate any laws here. Rather, they’re claiming that they used their copyright to achieve a non-traditional goal.