One of the things that has stymied many people from utilizing YouTube to embed Video clips on their Web sites is is the ever present and looming threat of copyright violation(s) and subsequent action against them for such usage.
The question on many people’s minds when they do or are thinking of embedding a video on their Web sites is: Can I be held liable for embedding a YouTube clip on my site? The simple answer to this is YES.
To be completely honest, that’s the only simple answer you will get when you begin to analyze and examine all of the surrounding questions that go into making the decision to post an embedded YouTube video on your Web site and whether or not you actually ARE violating copyright by doing so.
YouTube has a small but rather succinct copyright policy that states that they “respect(s) the rights of copyright holders and publishers and requires all users to confirm they own the copyright or have permission from the copyright holder to upload content. We comply with the Digital Millennium Copyright Act (DMCA) and other applicable copyright laws and promptly remove content when properly notified.” In a nutshell, this is a gigantic disclaimer for them stating that they are acting in accordance with the DMCA and will put any fault (read copyright infringement) squarely on the shoulders of the person uploading the file in the first place.
Each person that uploads a video through the YouTube service has to agree to the Terms of Service (TOS)that states that for each video uploaded “…[they] affirm, represent, and/or warrant that: [they] own or have the necessary licenses, rights, consents, and permissions to use and authorize YouTube to use all patent, trademark, trade secret, copyright or other proprietary rights…”. In addition to this, each individual also must ”…further agree that [they] will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless [they] 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.” YouTube has a number of very good guidelines posted on their site that outline a basic criteria for determining what is appropriate and legal to upload to their Web site.
While at first glance this appears to put any-and-all blame for a copyright violation on the person that performs the original upload, a mostly unknown legal-concept called “CONTRIBUTORY INFINGEMENT” becomes a potential nightmare for any would-be-embedder of known, or even suspected, copyrighted materials that may exist on YouTube despite their strict TOS agreements. There are a number of well-known cases involving media usage, file-sharing, and contributory infringement including:
A&M Records, Inc. v. Napster Inc.
Elison v. AOL
Gershwin Publishing Corp. v. Columbia Artist Management Inc.
Universal City Studios v. Sony Corp.
Viacom v. YouTube
While this all may sound a little frightening, the truth is that in order to be held liable for any acts of contributory infringement the “violator” must have active knowledge of the infringement and something called material contribution to the infringement. Material contribution, in most cases, is a vehicle to providing a direct infringement, for instance -the video is hosted on your site and is downloadable from your site or purchasable from your site, etc. Embedding a YouTube video on a Web site is simply a means of streaming a video from their site to yours (an enhanced link of sorts). Although legally this seems to still be considered a sort of vitual distribution of sorts (and thus you are still potentially liable), it is not quite the same as someone who materially contributes to the violation through a physical distribution mechanism such as may be found in the above listed Napster and AOL cases where they provided a software-based distribution mechanism, on site, for transferring copyrighted media files. In the end, the idea of contributory infringement seems to be mired in “murkiness” with regard to the legal liability of a webmaster whom wishes to simply embed a video from such a visibly and pro-active anti-copyright-infringement site such as YouTube.
One of the encouraging things that any potential YouTube embedder can take some solace in with regard to having some measure of protection against being named as a contributor in a copyright lawsuit is YouTube’s own implementation of their DMCA policy. YouTube provides a number of avenues for a video to be flagged and immediately taken down if copyright violation is determined. This type of determination usually manifests itself to the violator as a take-down letter or notice. I would surmise that this notificaiton process almost always happens at the YouTube site and most embedders would never be notified, they simply would find a “dead” video embed link that states that the video file was “removed” from YouTube.
Another fairly convoluted issue with what is and isn’t a copyright violation for video usage and/or sharing on YouTube is their in-house agreements with EMI, Sony BMG, Universal and other major and minor music and media industry players. Although I’ve looked for the terms of these type of agreements, I’ve personally found little information as to what additional rights (if any) these companies have given to YouTube users other than the occasional new “channel” that has their own versions of their copyrighted materials available for user viewing and commentary. Another example of a seemingly “known” acceptable usage of the license agreements with these entities is including a copyrighted song in the background of a newly created YouTube video. This type of allowance would allow for a person to upload a “home type of video” of their children or friends singing along with a copyrighted song or dancing to one. Many artists have threatened to sue (and have) over such usage and one of the results was the creation of the YouTube Video Identification concept and tool which allows for greater scrutiny of videos uploaded to YouTube for potential copyright violations.
Although there are many entities that have arranged some type of licensing agreements with YouTube many have not. For instance, the Warner Music group did NOT renew their previous licensing agreement with YouTube in 2008 and now YouTube has no legal protection for itself or users that have posted previously agreed upon usages of their copyrighted materials. This resulted in tens of thousands of videos being removed from the YouTube collection and users no longer being protected or legally allowed to use Warner’s copyrighted music in conjunction with the YouTube service in any form.
In addition to all of this “legalese”, what are the moral and ethical considerations a person that would like to potentially embed a YouTube video on their Web site (especially the educators) has to/should think about before doing so? Notwithstanding any inappropriateness of video content for minors, I believe they have the obligation to make their best judgement as to whether or not video is copyrighted and they also need to consider making efforts to include a disclaimer type of notice on their Web site with regard to immediate action being taken to removing any embedded video should such video become known or suspected as a copyright violation.
The confusion that people are faced with as to making a sound ethical determination of whether or not a suspected video is indeed a copyright violation or actually appears as a courtesy of some mainstream or obscure agreement with YouTube (or the copyright holder) is readily apparent and understandable. Also, when trying to make this type of determination, one must consider the agreement that every person that uploads a video to YouTube must make stating that they, at least in some way, have permission to upload the video in the first place. What bearing does this have on your decision and can we simply go forward unimpeachable because of this agreement? Not completely likely…
Provided that you aren’t causing any direct infringements or knowingly committing contributory infringement…it seems as though (at least to me as a layman) that the proverbial “door” is wide-open to embed the YouTube videos on your site with little fear of being named in a lawsuit, especially if you are willing and quickly able to remove any controversial video the moment you are made aware of the potential infringement and state so, visibly, with each embedded video that you post.
I wish that YouTube would consider posting on each video that ever has been ”flagged” as a potential copyright violation and then found out to be an acceptable usage that it was investigated and was ceared of the accusation. This, from my perspective at least, would seem to be easily implemented and highly valuable to the end-users as an informational tool. I am going to suggest a couple of other “checks” for consideration of your own determination of whether something is posted illegally on YouTube:
If something is clearly from a television show, movie, music concert, or purchasable source -take extra care when deciding whether or not to embed it on your site.
Look at the original post date and views of the video, if it has been posted for more than a year and also shows thousands of views -it probably would have been flagged and removed if it was a copyright violation or not allowed on YouTube for some reason. Give special consideration as to if you want to embed something that has been uploaded to YouTube recently and hasn’t had time to go through this type of public vetting process.
While these two ideas hold no legal bearing whatsoever, they do seem to provide some measure and idea as to whether or not something that is currently posted on YouTube might be in “good legal standing”. Again, there really doesn’t seem to be a definitive way to know that something is a violation unless you are the copyright holder of have been able to have direct contact with the copyright holder about the item in question.
So what does this all mean with regard to the question of embedding a YouTube video on your site?
In a nutshell, it means that you have to be careful, take some precautions, and be honest with regard to what you decide to embed on your Web site.
Is there any guarantee that you won’t have your “pants sued off you” for embedding a YouTube video on your site?
No, there isn’t, but the burden of proof is always on the prosecutors side and it seems to me that any person NOT purposefully and knowingly violating any issues that could be construed as “contributory infringement, AND taken into consideration YouTube’s own, very strict, DMCA policies, AND the agreements that MUST be made by each person originally uploading the materials, AND your stated willingness to take down, immediately, anything that is made known to you as a potential infringement IS a pretty solid-case for non-violation; BUT, I’M NOT A LAWYER NOR AM I GIVING LEGAL ADVICE WITH THIS POST.
Does all this copyright/legal usage stuff drive me nuts?
YES, but it’s necessary to better understand what we are allowed to do within the mountainous legal framework that is provided with regard to all of this.
Finally, Will I post and embed YouTube videos on my site?
Yes (and I have). Sometimes you just have to be boldand make your best educated guess with regard to a faced problem. Educationally speaking, there are so many videos available on YouTube that have enormous educational value and we must not be afraid of using the technologies availalbe to us, within legal parameters, to provide better educational opportunities for all!
It seems everyone has an opinion on this…What’s yours? Join the CIVIL discussion by commenting below…