YouTube Determines That NASCAR Does Not Have A Copyright On Everything It Claims To Have Copyrighted

Following yesterday's frightening crash in NASCAR's Nationwide Series DRIVE4COPD 300 at Daytona, controversy surged following NASCAR's decision to pull fan video of crash debris entering the grandstands.

Initially the message from YouTube was that NASCAR had pulled the video down on copyright grounds, presumably pursuant to language similar to the ticket below granting entrance to a NASCAR event at Indianapolis Motor Speedway:

On the ticket, NASCAR claims to own the rights to all "images, sounds and data" from a particular event. For further information regarding the clause and its applicability, ticketholders are directed to www.nascar.com/rights, which does not load. NASCAR later changed course, saying the video had been pulled in deference to the uncertain health status of many of the injured fans. This still does not change NASCAR's initial stance, however, that they have a right to limit access to this content.

YouTube later disagreed and reinstated the video. It's a reversal not often realized, likely because it requires a proactive step from the uploader—the person responsible for a potential copyright violation. 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. Last night, Erik Wemple at The Washington Post got a statement from YouTube on the decision to reinstate the video:

"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 quote is pretty vague on the who, the why and the how of the decision, but one thing is clear: as far as YouTube is concerned, NASCAR does not have a copyright claim to all images, sounds and data from an event to which it has issued tickets.

Wemple also notes that YouTube can reinstate videos without the counter-notification process "after it takes a look and decides for itself that the material doesn't infringe copyright, or when it feels that there has been abuse of its copyright process." That is not really spelled out on the site, but if a claim is improperly filed, YouTube may be able to treat it as voided and disregard it.

Most likely, the events in the immediate aftermath of the crash unfolded like this: NASCAR panicked about the video being online and requested YouTube take it down. YouTube rolled over as it usually does. As the story developed, outrage spread at the handling of the situation. ESPN initially was not even covering the crash apart from speaking to drivers even though the story clearly shifted from the track to the stands.

It was all compounded when video capturing the exact moment that happened was no longer hosted by YouTube because NASCAR pulled it. Eventually all involved realized that there was nothing copyrightable about the event from NASCAR's point of view. So YouTube reinstated the video in a matter of hours, and NASCAR said the removal was not based on a copyright claim but rather out of respect and caution. A noble if not entirely believable clarification.

It will be interesting to see what, if any, impact this may have on other events. Most teams and leagues have similarly broad language regarding copyright claims for action the ticketholder may witness—the Yankees for instance refer to this as "game information" and claim all the rights NASCAR does and specifically prohibit you from transmitting information while simultaneously ensuring the ability to use your likeness in its own transmissions. Teams, leagues and entertainment providers go to great lengths to protect their brand reputation (profitability) and as we saw yesterday often have powerful allies. But at some point yesterday enough people made a stink that they cut through the bullshit. It makes you wonder what YouTube will do the next time a fan captures a spontaneous break in the typical action.