When a YouTube video is taken down for copyright infringement, most people get it: Don't post videos that are someone else's legal property. But when YouTube quickly re-posts a video it had pulled, that's an unusual step for the largest video-sharing site in the world.
At NASCAR's request, the Google-owned YouTube removed the 1 minute-and-16-second video taken by a high school student, Tyler Andersen, who was at the the NASCAR Nationwide Series auto race at Daytona Beach Saturday. His video captured part of the horrific accident that injured at least 28 fans, with chunks of debris flying into the stands.
When Andersen posted the video on YouTube, he was clear about his reason for doing so:
No disrespect intended to any of those injured or their families. I was just sharing my experience with a worldwide audience. I will continue to keep all affected by this incident in my prayers and I thank God for protecting me. Thank you.
NASCAR asked Google to take down the video, and it did. The Atlantic Wire points out that "NASCAR's legal fine print on any ticket says they own the rights to any video, sounds or data related to a race. The question became, eventually, whether or not that legal fine print extended to a fan video. Observers criticized NASCAR for taking the video down in the middle of a news story that was still unfolding."
But NASCAR says this wasn't about copyright infringement.
"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," Steve Phelps, NASCAR's senior vice president and chief marketing officer, said on Saturday in a statement shared with NBC News.
"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."
And so YouTube reversed course, allowing the video back up late Saturday, saying in a statement to The Washington Post, and again Monday to NBC News:
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.
By late Monday, the video had done well over 600,000 views.
Phelps reiterated NASCAR's stance in a statement to NBC News: "This was never a copyright issue. This was never a censorship issue," he said. "The video ... was blocked out of respect for those injured in the accident. Google decided to lift that block."
What does it mean for most of us, who walk around with HD camcorders in our smartphones? Does the fact that Andersen's video continues to survive — and even thrive — mean that we can post our own footage of ticketed sporting events? Though tickets tend to warn against such behavior, are we really forbidden from taking a video and posting it on YouTube?
In many cases, yes. If the ticket is a contract, you may be in breach.
YouTube's "decision to allow the video to remain available, while a positive sign in terms of YouTube's willingness to scrutinize claims of copyright infringement, does not in any way prevent NASCAR from pursuing other remedies against the poster of the video — including, potentially, enforcement of the contract embodied on the ticket or a direct claim of copyright infringement against the poster," Jeffrey P. Hermes, director of the Digital Media Law Project at Harvard's Berkman Center for Internet & Society, told NBC News Monday.
(In this instance, NASCAR has not indicated it would pursue such action.)
However, "NASCAR also cannot claim that the fan has granted NASCAR ownership of that recording based merely on the fine print on the back of a ticket," Hermes said.
Besides, he thinks there's "a serious question as to whether NASCAR has a valid copyright claim in an unscripted sporting event," such as Saturday's race. It's the kind of event, he said, that is "different from a scripted 'performance'" such as a rock concert "in which copyright might arise under U.S. law."
(Translation: Don't even think about posting that Beyoncé concert footage.)
Corynne McSherry, intellectual property director of the Electronic Frontier Foundation, told NBC News Monday that YouTube's decision to re-post the NASCAR video is "the right decision, because NASCAR does not hold the copyright in a fan video."
The EFF has seen this sort of thing before. When Showing Animals Respect and Kindness, an animal-rights activist group, filmed rodeos in order to demonstrate alleged abuse, the Professional Rodeo Cowboys Association fired back, requesting takedown of 13 videos. At the time, YouTube responded by eliminating the activists' account.
When the EFF took the case to court, it was settled in 2009. The agreement protects the group's "right to publicize their critiques."
"The (rodeo association) has no copyright claim in live rodeo events, just as NASCAR has no copyright claim in fan videos," says McSherry.
While the case didn't set a precedent, she said, "the law on this is not ambiguous: absent some other arrangement or exception (such as a work for hire), copyright goes to the person who created the video, not the person who created the event."
Update: 2 p.m. ET Tuesday, Feb. 26: A NASCAR spokesman contacted NBC News Tuesday to add that NASCAR "owns the rights to video shot at the track, but we don't and won't enforce those guidelines unless that content is being used commercially."
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