We are happy to have a guest blogger this week, Mark Pearson, from the ARC Law Group (www.arclg.com). Whether you are an entrepreneur considering a play involving other people’s media or simply considering leveraging material from YouTube on your site, Mark provides insights on what’s safe, what’s not safe, and other best practices for protecting your company in the digital age.


 

I am often asked the following by friends and colleagues in the media is; “How does YouTube get away with posting videos they don’t own?” or “Can I use YouTube videos on my website?”  In order to even begin answering such loaded questions, we must start by looking at how YouTube works.

YouTube is what’s known as an internet intermediary. This means, the content found on the YouTube website is almost exclusively generated by third party content providers or “posters”. YouTube, as the intermediary, merely provides the platform for these third parties to post content.  YouTube does not create content or post videos to its website, instead they rely on you, as a poster, to provide them with video content.

Despite the fact that video content is generated by third parties, YouTube must still secure the right to display and perform the videos.  These rights are based on U.S Copyright Law (17 USC 101, et seq.).  Copyright gives the owner of a video the exclusive right to distribute, perform, display, reproduce and make derivative works of the video.  In order to use any videos on the website, YouTube (Google) must secure permission from the owner of each video.

In the traditional copyright permission scenario, a licensee seeks out a licensor and asks for permission to use the licensor’s works under a license agreement.  However, this is not the case with YouTube.

YouTube derives it rights from the third party submitting video content to its website.  YouTube, in essence, works backwards.  Meaning, instead of going out and looking for licensing partners YouTube lets the partners come to them.  In order to post a video on the YouTube site the poster must agree to license YouTube the right to use the video.  This license is in the form of a standard “click-through” agreement, completed online at the time a poster submits a video.  In some instances, YouTube will have a more formalized agreement with larger content providers, and will actually have a revenue arrangement with these larger providers.

Once YouTube has secured the copyright license in a video, they can then pass that license on to users of their website.  Users looking to view videos on YouTube passively agree via the Terms of Use, linked at the bottom of each page on the YouTube website, to a non-exclusive grant of right to view videos on YouTube and to link and/embed videos to their blogs and personal websites, for non-commercial purposes only. Here is the language from the YouTube end user Terms of Use:

4. General Use of the Service—Permissions and RestrictionsYouTube hereby grants you permission to access and use the Service as set forth in these Terms of Service, provided that:

You agree not to distribute in any medium any part of the Service or the Content without YouTube’s prior written authorization, unless YouTube makes available the means for such distribution through functionality offered by the Service (such as the Embeddable Player).

You agree not to alter or modify any part of the Service.

You agree not to access Content through any technology or means other than the video playback pages of the Service itself, the Embeddable Player, or other explicitly authorized means YouTube may designate.

You agree not to use the Service for any of the following commercial uses unless you obtain YouTube’s prior written approval:

(a) the sale of access to the Service;

(b) the sale of advertising, sponsorships, or promotions placed on or within the Service or Content; or

(c) the sale of advertising, sponsorships, or promotions on any page of an ad-enabled blog or website containing Content delivered via the Service, unless other material not obtained from YouTube appears on the same page and is of sufficient value to be the basis for such sales.

A user can embed a video found on YouTube to his or her blog or website provided the site it is not being operated for commercial purposes.  YouTube explains what they consider to be commercial use in their FAQ as follows:

[YouTube] doesn’t want to discourage you from putting the occasional YouTube video in your blog to comment on it or show your readers a video that you like, even if you have general-purpose ads somewhere on your blog. We will, however, enforce our Terms of Use against, say, a website that does nothing more than aggregate a bunch of embedded YouTube videos and intentionally tries to generate ad revenue from them.

If a user embeds a YouTube video on a blog or website which is deemed to be commercial in nature, the use would likely be considered copyright infringement and/or a breach of contract.   YouTube would be entitled, at minimum, to injunctive relief against the user and, at maximum, to an award of damages for the infringement and/or breach.

It’s also worth noting that the license granted to users under the Terms of Use to embed video content contains restrictions limiting use of the videos only within the embedded YouTube player.  YouTube expressly prohibits recording or duplicating any video found on the YouTube website or circumventing the embedded player’s display.

We’ve now covered how YouTube obtains the right to display and embed the videos found on its website, and how those rights are transferred to end users, but, what happens if someone posts a video that they don’t own?  A classic example would be where a third party posts a clip from their favorite movie (Star Wars) to YouTube, without permission from the studio that owns the movie (LucasFilm).

Going back to the issue of YouTube as an intermediary; provided YouTube offers copyright owners the right to give “notice” of an alleged infringement, and YouTube agrees to “takedown” any infringing video, then YouTube is not liable for copyright infringement. The Online Copyright Infringement Liability Limitation Act (“OCILLA”) protects internet intermediary websites from punishment for the acts of third party posters.  Commonly referred to as the “Safe Harbor” provision of the Digital Millennium Copyright Act (“DMCA”), OCILLA sets forth the “notice and takedown” rules which, if followed, relieve an intermediary of any liability for copyright infringement.  The intent of OCILLA is to promote a free market environment on the internet, while balancing the rights of copyright owners.

How does OCILLA work? if LucasFilm sees a clip from Star Wars on YouTube that was posted by John Q. Public it would send notice to the DMCA claim department at YouTube.  YouTube would then suspend access to the video and send notice to John Q. Public that a claim of copyright ownership in the video was made by LucasFilm.  John Q. Public then has a chance to dispute the claim, otherwise the video remains removed from the site permanently.  Under its Terms of Service agreement with John Q. Public, YouTube also has the right to suspend John Q. Public’s account if he is accused on multiple occasions of posting content he does not own.

This is why you might see any number of videos on the YouTube website which are infringing on the rights of the true copyright owner.  In fact, it’s such a major issue, YouTube has an entire department that does nothing but handle DMCA Copyright “notice and takedown” cases.

Finally, if you embed a YouTube video to your own website or blog (for non-commercial uses, of course) and it turns out that the video was posted by someone who did not have permission from the copyright owner, fear not!  YouTube, since it’s is still hosting the embedded video even though it’s on your site, is responsible for complying with OCILLA.  If you receive a message from the copyright owner, you would simply pass the message to YouTube and/or instruct the copyright owner to do the same.  Keep in mind, you’ll want to update your site since the embed video will likely soon be removed.

 

Mark A. Pearson is a former member of the news media turned Entertainment Lawyer.  He counsels creative, talented and entrepreneurial clients on copyright, trademark and contract law as a partner at ARC Law Group in San Francisco.  Mark is also serves as the Board of Governors’ Legal Chair for the NorCal Chapter of the National Academy of Television Arts & Sciences. Send Mark a message at mark@arlg.com or find him on the web at www.arclg.com. 
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