Seltzer, law professor by day, is also staff attorney for the Electronic Frontier Foundation (EFF) by night and founder of Chilling Effects, a web site dedicated to educating the public about online rights. Very well aware of her own rights under DMCA, she promptly sent a counter-notification to YouTube (generated by the Chilling Effects counter-notice generator, no less), citing Section 512 of the DMCA saying that YouTube must replace the material if they receive a counter-notification asserting "good faith belief" that the material removal was a mistake.

This is where the saga starts to get messy. Seltzer's counter-notification — which was forwarded to the NFL from YouTube — clearly described her use of the clip as fair use: "an educational excerpt featuring the NFL's overreaching copyright warning aired during the Super Bowl." As Seltzer outlines in her blog post, the NFL's only option in response to her counter-claim would be to force her to remove the clip via court proceedings. This obviously did not happen, and instead, the NFL chose to ignore her claims completely. After receiving her counter-notification claiming fair use, sending another takedown notice over the same content is considered a knowing misrepresentation that the clip is infringing, according to DMCA section 512(f)(1). Under the DMCA, the NFL would be liable for all legal fees incurred by the alleged infringer, along with damages.

Essentially, the NFL is now in violation of the same law that it is using to try to protect its own content. And, instead of following the proper procedures outlined in the DMCA, the NFL appears to be choosing to beat her over the head with takedown requests.