EXCLUSIVE: How The NFL Fumbled Chrysler's Commercial

Chrysler's Clint Eastwood ad was the most controversial commercial (for various reasons) of this year's Super Bowl. But it wasn't controversial enough that someone acting on behalf of the NFL should have had it pulled off YouTube. How and why they did it demonstrates just how easy it is for someone to falsely claim copyright protections.

After a day of PR reps from Chrysler, the National Football League, and Google all claiming to have no idea how Chrysler's ad could have been pulled down off YouTube, we finally received confirmation from NFL spokesperson Brian McCarthy of what we'd initially feared:

"A third-party vendor monitoring game content mistakingly sent a takedown notice… The vendor thought the ad was part of the halftime programming, which is protected, and not a commercial."

So, the NFL had no issue with the ad. Chrysler did nothing to violate a copyright. NBC nor Google had any objection at all. The NFL even hosted the ad on their own website. How does this happen?

Someone working on behalf of the NFL — maybe it was an intern at the NFL's social media monitoring company — neither Google nor the NFL will tell us specifically who it is — was apparently tasked with searching for anything related to the game once it started. Specifically, for anything "halftime" related.

It's possible that this person/persons searched through anything on YouTube with the word "Halftime" and sent a form-letter DMCA take-down request. That person was entirely wrong, but it cost Chrysler potentially millions of dollars because the ad was down within minutes after the game.

Though the NFL is partially responsible for this, they aren't really to blame. Google is. They claim their DMCA instructions are clear and designed to prevent this, but in practice that's not the case.

Google's policy requires a written communication that specifically identifies what work was infringed upon:

To file a copyright infringement notification with us, you will need to send a written communication that includes substantially the following (please consult your legal counsel or see Section 512(c)(3) of the Digital Millennium Copyright Act to confirm these requirements):

[...]

ii. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.

Since none of what was in the Eastwood video includes anyone else's copyrighted work, what possible proof could they have included that Google accepted? We've emailed them to ask just that but have received no response yet.

Google does have a responsibility not to infringe on other people's copyrights, which frequently does happen on YouTube. But there has to be a balance between providing a platform for content and protecting intellectual property. This clearly shows the balance is tilted towards those with the power to make erroneous claims to copyright and Google's censors work on a shoot first, ask questions later basis.

Photo Credit: Shutterstock/Everett Collection