The Internet, with all its conveniences and complexities, has changed the way videographers watch, share, and interact with video. Video sharing websites like YouTube and Vimeo, social media websites like Facebook and Instagram, and other online platforms have given content creators the ability to instantly share their work with large audiences. On the flip side-- complexities, particularly legal ones like unauthorized sharing or reproduction, can be crippling.
The pros and cons, therefore, can leave you wondering if the Internet is your friend or if it does more harm than good. Ultimately, it depends.
Video Views vs. Courthouse Pews
In general, YouTube, Vimeo and other similar online platforms give you instant access to an unbelievably massive audience. YouTube, for example, has over a billion users, and sees over 30 million visitors each day. That kind of reach was unimaginable prior to the Internet. And as long as you post your own content or someone else’s content with permission, and that content doesn’t violate YouTube’s Community Guidelines, you can potentially reach millions with the click of a button. Vimeo, while smaller than YouTube in its reach, also instantly connects content creators with millions of viewers. Even Facebook, a relative newcomer in the video streaming business, already boasts billions of views per day. You get the picture.
This ease and convenience, however, comes at a cost. A larger audience brings with it a higher probability of someone stealing your work, misappropriating it, or otherwise violating your copyright rights, causing legal headaches along the way.
A larger audience brings with it a higher probability of someone stealing your work, misappropriating it, or otherwise violating your copyright rights, causing legal headaches along the way.
So the best way to successfully leverage the Internet is to know what to look out for, when to speak up and how to fight back. We’ll be referring to YouTube throughout this article, but note that the principles are largely the same for most video hosting sites.
Upload and Download Basics
The long and short of uploading content onto YouTube is that they provide the platform while you perform the due diligence. YouTube’s Terms of Service state, “[you] shall be solely responsible for your own Content and the consequences of submitting and publishing your Content on the Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit.” In other words, you can only upload your own stuff or someone else’s stuff if and when you have permission to do so.
Downloading rules follow the same basic logic. The very same Terms of Service limit downloads to content with a “‘download’ or similar link” and then clearly restrict the use of that content beyond informational and personal use, stating, “[you] shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes.” Of course getting prior written consent from the relevant license holder is a way of getting around this, but overall, YouTube is strict about how uploaded content can be used.
Ultimately, these restrictions center on Title 17 of the U.S. Code, otherwise known as Copyright law, which protects “original works of authorship fixed in any tangible medium of expression.” Among the works that can be protected are literary works, musical works, and “motion picture and other audiovisual works,” and an example of fixing such a work in a tangible medium of expression would be to, say, physically write a short story, record a song in a studio, or film a motion picture.
How, then, are these rules enforced and what can you do about it?
The main weapon in your legal utility belt is the Digital Millennium Copyright Act (“DMCA”), a 1998 congressional act that, among other things, criminalized the creation and sharing of ways to circumvent copyright controls and heightened penalties for copyright infringement on the Internet. YouTube’s Terms of Service instruct users who feel their rights have been violated to submit a notification of the violation to the company’s Copyright Agent with information on the violation. The agent then looks into the uploaded content in question and decides whether a violation exists.
On the flip side, if you feel your content has been erroneously taken off the site based on DMCA grounds, you can submit a Counter-Notice asking that the content be restored. YouTube then considers the case to restore the content – if the material is deemed not in violation of the DMCA, YouTube may notify the complaining party that the video will go back up and subsequently put your work back on the site.
You can also submit a cease and desist letter, which is a formal request for the offending party to take down the infringing material. For example, if you see someone claiming a video you created as their own, you can ask them directly to take down that video rather than go through YouTube’s legal department and submit a DMCA notice. While not legally binding, these documents tend to carry weight in the courtroom if it ever gets that far.
Finally, if either party is unhappy with the result, they can always pursue direct legal action by suing the offending party. This route, however, tends to be more expensive and should be a last resort, such as when other tactics fail and suing makes financial sense. While suing an individual user (i.e. a user that violated your rights with content they uploaded) is the more common lawsuit scenario, it is also possible to sue YouTube itself. However, suing a company as large as YouTube typically requires a class action filing, which is about as difficult as it gets. So avoid this as much as you can – a lot can be done with a DMCA takedown notice or a well-worded cease and desist letter
The Internet is your friend as long as you know what you’re doing and how to deal with potential bumps along the way. Carefully select the content you post – even if you believe it’s your own, original work – make sure the background music, images, or other aspects of your video don’t violate anyone’s rights. At the same time, be diligent about who interacts with your content and how. If you feel your rights may have been violated, submit a DMCA notification, send a cease and desist letter directly to the offending party, or otherwise seek legal action when it makes sense.
And remember, the law is your friend. Copyright laws are meant to protect your content and incentivize you to create more without fear of someone taking credit for your work. If you are unsure of which path to take or otherwise want more information, contact a friendly intellectual property lawyer near you.
Roman Zelichenko, based in New York City, is a writer and entrepreneur with intellectual property experience, and has drafted legal opinions and articles on the subject. You can follow him on Instagram at @rzelichenko. Mark Levy is an award-winning amateur movie maker and intellectual property attorney based in Colorado.