11. Who Owns What: Legal Issues with YouTube Videos
YouTube is a video sharing site, to which users can upload virtually any type of video. As you can imagine, this causes more than a few problems, as some users are apt to upload videos that aren't their own—that is, copyrighted videos copied from another source. And sometimes that other source objects to their videos being shared on YouTube in this fashion. When this happens, problems ensue.
Dealing with Copyright Infringement Issues
Here's the deal. You can upload just about any video to YouTube—everything from amateur home movies to clips you've recorded from TV to movies you've ripped from commercial DVDs. But just because you can upload the video doesn't mean that you have the right to do so. And if you upload something you shouldn't, YouTube will pull it from the site.
The Legal Issue
One of YouTube's biggest challenges is managing the issue of copyright infringement. Users post illegally copied videos to the site, the copyright owners find out about it and complain to YouTube, and then YouTube pulls those infringing videos.
This puts YouTube in an awkward position, both operationally and legally. Operationally, it has to spend considerable amounts of resources to respond to these complaints, evaluate questionable videos, and then pull the videos from the site. Legally, YouTube quite possibly is leaving itself open to the same type of industry legal action that closed down numerous audio file sharing sites, such as the original Napster.
That said, YouTube seems to go out of its way to accommodate the demands of copyright holders. It responds quickly to complaints and has a track record of pulling offending videos and kicking serial offenders off the site. (This does not always endear YouTube to its user base, of course.) In addition, YouTube is working closely with big media companies to obtain formal licenses for broad swaths of content, to the point of creating company-specific channels for major networks, music labels, and the like.
As a spokesman for YouTube notes:
"We take copyright issues very seriously. We prohibit users from uploading infringing material, and we cooperate with all copyright holders to identify and promptly remove infringing content."
YouTube's history of cooperation does not change its "beg for forgiveness" approach—only taking videos off the site when a complaint is filed. That is, the site is not proactive in policing potentially infringing content and has no current means of automatically verifying that an uploaded video is legal. By remaining relatively passive in how it deals with the copyright issue, YouTube is at risk for lawsuits from the holders of those infringed copyrights—especially as the site begins to generate higher revenues and real profits.
Several lawsuits have already been filed. In June 2006, television journalist Robert Tur (also owner of the Los Angeles News Service) sued YouTube for hosting clips from several of his reports, including footage of the beating of trucker Reginald Denny during the 1992 Los Angeles riots. Tur is seeking $150,000 for each of his videos found on the site; the case is still in process.
Even more ominous, in March 2007 Viacom sued YouTube for $1 billion, charging massive copyright infringement from YouTube's posting of more than 100,000 Viacom video clips. Both the lawsuit and the requested financial damages, however, have struck many experts as being on the frivolous side. First, YouTube dutifully complied with Viacom's request to pull its videos from the site, which appears to fulfill YouTube's obligations under the Digital Millennium Copyright Act of 1998. Second, the $1 billion figure is laughably large, especially considering that YouTube itself generated only about $15 million or so in revenues in 2006. Even if Viacom is looking at the $1.65 billion that Google paid for the company and wanting a share of that, there's no way that Viacom's clips accounted for more than half of all YouTube downloads. To me this lawsuit appears to be a negotiating ploy for Viacom in an attempt to get its videos on YouTube and get paid for them—no doubt at a relatively hefty rate. This doesn't mean that it won't ultimately be harmful for YouTube (probably in some sort of pre-trial settlement with Viacom), but it certainly doesn't foretell the end of YouTube as we know it. (YouTube's parent, Google, does have deep pockets, after all.)
Of course, not every media company views YouTube's video file sharing as a threat. Some companies view the proliferation of video clips online as free promotion, which makes them less likely to sue YouTube over illegally uploaded clips. As Sean McManus, president of CBS News and Sports, noted in a July 2006 CBS PublicEye report:
"You've got to find the fine line between the great promotion YouTube gives a network, and protecting our rights. Our inclination now is, the more exposure we get from clips like that, the better it is for CBS News and the CBS television network."
Antipiracy Software
YouTube's liability should decrease as it becomes more proactive in identifying infringing videos—that is, as the site itself identifies illegal videos without waiting for third-party complaints to be filed. This is the direction in which YouTube is moving.
As of October 2006, YouTube is employing antipiracy software that uses audio-signature technology to spot low-quality copies of licensed music videos. This software is used in conjunction with YouTube's agreements with major record labels; when an illegal copy of a music video is found, YouTube is contractually obligated to either remove the copy or replace it with an approved version of the clip.
The problem with this approach, as some see it, is that the antipiracy software is only used when YouTube has a formal licensing agreement with a record label. Thus the site discriminates between those copyright holders with whom it has a formal business agreement and those with whom it doesn't. In other words, YouTube is only protecting selected copyrights, which doesn't sit well with those companies with whom YouTube doesn't yet have a licensing agreement.
As a spokesperson for Viacom noted in a February 2007 Reuters article, YouTube's "proposition that they will only protect copyrighted content when there's a business deal in place is unacceptable." Another industry source likened YouTube's antipiracy policy to a "mafia shakedown." That's probably not the best way to make friends with those in the media industry. (And why YouTube says it will eventually make its antipiracy software available to all content owners.)
Avoiding Copyright Problems
Big-time legal issues aside, how does the copyright issue affect you as a YouTube user?
First, if you're just a viewer, you're in no harm whatsoever. You can't be sued for watching infringing videos, so the only impact is on what videos are available to watch.
Uploaders, however, are affected by this issue. Not only do copyright concerns impact what videos you can upload, it's also possible that you could be held legally liable for uploading illegally copied content. Although that's not a big concern just yet, it's still possible that copyright holders could come after you as well as going after YouTube. It's certainly happened with audio file sharing; the Recording Industry Association of America (RIAA) has been aggressively pursuing legal action against individual file uploaders.
The threat of lawsuits aside, it's more likely that YouTube will take its own action against serial copyright infringers, in the form of terminating your account. That's right; post illegally copied videos to YouTube, and you could be barred from the site.
YouTube's Terms of Use
So what exactly can you upload to YouTube—and what shouldn't you upload?
The first thing any video uploader should do is read YouTube's official terms of use, which you can find at www.youtube.com/t/terms. The relevant parts of this agreement are found in section 5.C., which reads in part:
In connection with User Submissions, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant YouTube all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage YouTube or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business: (v) impersonate another person. YouTube does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and YouTube expressly disclaims any and all liability in connection with User Submissions. YouTube does not permit copyright infringing activities and infringement of intellectual property rights on its Website, and YouTube will remove all Content and User Submissions if properly notified that such Content or User Submission infringes on another's intellectual property rights. YouTube reserves the right to remove Content and User Submissions without prior notice. YouTube will also terminate a User's access to its Website, if they are determined to be a repeat infringer. A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had a User Submission removed from the Website more than twice. YouTube also reserves the right to decide whether Content or a User Submission is appropriate and complies with these Terms of Service for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to, pornography, obscene or defamatory material, or excessive length. YouTube may remove such User Submissions and/or terminate a User's access for uploading such material in violation of these Terms of Service at any time, without prior notice and at its sole discretion.
Got all that? In essence, this passage says that you will not knowingly upload videos that contain copyrighted material, and if you do, YouTube will remove that content. YouTube will also terminate your access to the site if you get caught uploading infringing material more than twice. As you might suspect, YouTube reserves the right to decide which content is allowable—and which isn't.
I am not a lawyer, nor do I play one in a YouTube video. The concepts expressed in this section are for informational purposes only and are not to be considered legal advice. For legal advice, consult a lawyer.
What You Can't Upload
In practical terms, this means that you shouldn't upload any of the following:
- Recordings of television shows (including prime time shows, news broadcasts, sporting events, and the like)
- Clips from commercial DVDs (including movies, music videos, documentaries, and so on)
- Movie trailers
- Music videos
- Recordings of live concerts, including recordings you make yourself with a camcorder
- Home movies or videos that contain commercially available music, even if used as background music
- Home movies or videos that contain other copyrighted videos in the background, or as part of the movie
- Commercials
- Photo montages or slideshows that contain photos taken by someone other than yourself
Sound like a pretty broad list? It is; if held strictly to these guidelines, the vast majority of YouTube videos would be found to be infringing. Which means, of course, that there are a lot of infringing videos online that nobody is getting upset about and that YouTube isn't blocking. Still, you need to be aware that you could be infringing if you post videos that meet these criteria, and you could have those videos removed from the YouTube site.
So what videos are completely safe to upload? You should be safe in uploading your own home movies or self-produced videos, as long as no copyrighted material (such as background music) is contained within. You're also safe in uploading recordings and clips that contain copyrighted material as long as you get prior permission to use that material.
Past that, it's always a judgment call.
It doesn't matter how old or how new a clip is, how long or short it is, or where you obtained it. Even if you copied the clip from another website, if it contains copyrighted material, you still need the copyright holder's permission to upload the clip to YouTube.
Including Music in Your Videos—Legally
Want to include background music in your videos, but don't want to infringe on anyone's copyrights? Then check out YouTube's new AudioSwap feature, currently testing as part of the TestTube incubator. AudioSwap is a collection of music that YouTube has licensed from artists and record labels for use in users' videos. To check it out, go to the AudioSwap page (www.youtube.com/audioswap_main) and click the Try It Out button.
When AudioSwap moves out of the testing phase, the Replace Audio button should be available from the normal Edit My Videos page.
This displays your Edit My Videos page, but with a Replace Audio button added to each video. Click the Replace Audio button, and YouTube displays the AudioSwap page shown in Figure 11.1. Select a Genre, Artist, and Track for your soundtrack, and then listen to the preview of your video with the new soundtrack. If you like what you hear, click the Publish Video button; this republishes your video on the YouTube site, with your original soundtrack replaced by the new soundtrack.
Figure 11.1. Using YouTube's AudioSwap to add legal music to a video.
When you use AudioSwap, your entire original soundtrack is replaced by the selected music. Don't use this feature if you want to keep your original sound—including any dialog!
Fair Use
There is one major exception to the prohibition against uploading copyrighted material to YouTube. The Fair Use provision of the Federal Copyright Act could exempt you from YouTube's rules and allow certain copyrighted material to be used without the copyright holder's permission. It all depends on how "fair use" is defined.
The principle of fair use goes like this. You are entitled to freely use portions of copyrighted works for purposes of commentary and criticism, without prior approval of the copyright holder. For example, if you want to post a movie review to your blog, you can quote a few lines of dialog from the movie within your review without fearing a lawsuit from the movie studio. You cannot reproduce the entire script, however; that wouldn't be fair use.
The problem with fair use is that there are no hard-and-fast rules as to what constitutes fair use. If the copyright owner disagrees with your interpretation of the concept, you'll end up deciding who's right in a court of law.
How do you determine fair use? According to the Copyright Act, four factors should be considered:
- The purpose and character of the use
- The nature of the copyrighted work
- The amount and substantiality of the portion used
- The effect of the use on the potential market for or value of the copyrighted work
Not very clear, is it? Perhaps the best rule is that if you're in doubt, don't do it. That's the safest course of action.
What to Do If YouTube Pulls One of Your Videos
Okay, so you ignore all the information in this chapter (as most YouTubers do), upload a video to YouTube that contains copyrighted material, and have the bad luck to have the copyright holder notice your video. When the copyright holder files a complaint with YouTube, what happens next?
Let's be honest. YouTube isn't very discerning when it receives this type of complaint. More often than not, YouTube pulls the video without blinking twice—and without investigating the merits of the complaint. This means that it's possible that a perfectly legal video could be removed by YouTube, if a complaint has been mistakenly made.
When Viacom demanded that YouTube remove 100,000 or so of the company's videos from its site, several legitimate videos got caught up in the purge. For example, a home video titled "Sunday Night Dinner at Redbones in Somerville, Mass" was mistakenly identified by Viacom as infringing on its copyrights, even though it contained no infringing material. (My guess is that "Somerville Redbones" was too close, semantically, to "Sumner Redstone," the chairman of Viacom.)
When a video of yours receives a copyright infringement complaint, YouTube removes the video from the site and sends you a notice via email. The notice reads something like this:
Dear Member:
This is to notify you that we have removed or disabled access to the following material as a result of a third-party notification by Viacom International Inc. claiming that this material is infringing:
Name of video
Please Note: Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to avoid future strikes against your account, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube's copyright policy, please read the Copyright Tips guide.
If you elect to send us a counter notice, to be effective it must be a written communication provided to our designated agent that includes substantially the following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to confirm these requirements):
A physical or electronic signature of the subscriber.
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
Such written notice should be sent to our designated agent as follows:
DMCA Complaints
YouTube, Inc.
1000 Cherry Ave.
Second Floor
San Bruno, CA 94066
Email: [email protected]
Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
Sincerely,
YouTube, Inc.
What can you do if you receive such a notice that your video has been removed from YouTube? As the message states, your recourse is to respond to YouTube's DMCA Complaints department, either via email or snail mail. You'll need to provide proof of why your video isn't infringing and be prepared for some drawn-out back and forthing with YouTube over the video in question. And there's no guarantee that YouTube will buy your argument and repost the video; as I said earlier, YouTube is very cooperative with the big copyright holders, and not so much with individual users.
DMCA stands for the Digital Millennium Copyright Act, a 1998 bill that updates previous United States copyright law for the electronic age. Learn more about DMCA and copyright issues at the U.S. Copyright Office website (www.copyright.gov/legislation/dmca.pdf), the Electronic Frontier Foundation (www.eff.org/IP/DMCA/), and the Anti-DMCA Website (www.anti-dmca.org).
What's Yours Is Theirs: Controlling Use of Your Own Videos
Problems can also arise when you upload your own private videos to YouTube and other people appropriate them for their own use. These are copyright problems of another sort, especially if you don't want other users copying or otherwise using your videos without your consent. Unfortunately, as soon as you upload a video to YouTube, you lose most control over what happens with that video.
Who Owns Your Videos?
Let's be clear. You retain the copyright for any video you create, even if you upload to YouTube or another file sharing site. Just because a video is posted publicly does not mean that is in the public domain; as YouTube states in section 5.B. of its Terms of Use:
For clarity, you retain all of your ownership rights in your User Submissions.
That does not mean, however, that you can control how your video is used, especially on the YouTube site. In fact, YouTube's Terms of Use goes on to say, in the very next sentence:
However, by submitting the User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube's (and its successor's) business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service.
In other words, any video you upload to YouTube can be used by YouTube in any way it sees fit, no approval required on your part. In addition, any other user of YouTube can also use your video in any way desired, again with no approval necessary. You may own the rights, but YouTube and its millions of users can access, use, reproduce, or distribute your video, no questions asked.
What does this mean? It means that if YouTube wanted to create a DVD of your videos, it could. If YouTube wanted to base a television show on your videos, it could. If YouTube wanted to publish a book containing screenshots from your videos, it could. As could any of YouTube's users. And they wouldn't have to pay you a penny to do any of these things.
That's right, when you upload a video to YouTube, you grant YouTube and its users a license to use your material, free of charge. It's still your material, but they can use it as they wish—and have no obligation to compensate you for its use.
There's nothing you can do about this, however, save for not uploading your videos to YouTube in the first place. But it's something you need to know.
The nonexclusive license you grant to YouTube and its users exists only as long as your video resides on the YouTube site. If you remove your video from YouTube, the license terminates, and all rights revert back to you, the copyright holder.
Reporting Copyright Violations
Then there's the issue of someone literally stealing your video—uploading a video to which you own the copyright, without your permission.
As noted previously in this chapter, YouTube is sympathetic to copyright violation complaints. All you have to do is file a complaint with YouTube, and chances are the offending video will be removed.
How do you file a copyright violation complaint? You need to send a formal notification to YouTube's DMCA Complaints department, either via email or postal mail, at the following address:
DMCA Complaints
YouTube, Inc.
1000 Cherry Ave.
Second Floor
San Bruno, CA 94066
Fax: 650.872.8513
Email: [email protected]
Your complaint should contain the following:
- A physical or electronic signature of a person authorized to act on behalf of the copyright owner (that's either you or your lawyer)
- Identification of the copyrighted work(s) that you think have been infringed
- Identification of the material that you claim is infringing on your copyrighted material, ideally in the form of URLs for the offending videos
- Your name, address, telephone number, and email address (or the same information for your lawyer)
- A statement that you have a good faith belief that use of the material on YouTube is not authorized by you, your agents, or the law
- A statement that the information in the notification is accurate and, under penalty of perjury, that you or your lawyer is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed
The best way to proceed is to email all this information to YouTube, making sure to include the offending videos' URLs in the body of your email message. This way YouTube can quickly act to remove the identified videos, without waiting for the postal service to do its thing.