If you watch the news at all, chances are you have seen a YouTube video as part of a news story. For those unaware, YouTube is a video sharing website owned by Google. Users can upload and share their videos. As it happens, “YouTube video” is somewhat of a misnomer, as YouTube does not create or own the videos on its site. YouTube is simply an online hosting site for a collection of user videos, recorded by thousands of people all over the world. But what happens when one such video gains national attention via TV news outlets? When such a video is on the news, there is usually a credit in the corner of the video acknowledging that the video was found on YouTube. This begs the question, however, “What about the video’s creator? Doesn’t he or she deserve credit?” The answer, according to YouTube, is a simple one: no.
In YouTube’s terms of service, which every user must accept before uploading a video, the rules are stated very clearly. “By submitting 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.” In layman’s terms, by submitting content to YouTube, you are giving Google permission to use your content however it pleases.
It is important to remember that the majority of YouTube’s profits come from advertising. Therefore, the more exposure YouTube gains, the more money Google will make. To put it in perspective, it currently costs $175,000 dollars a day to advertise on the front page of YouTube. This number can be expected to rise as YouTube becomes even more popular. You can now see why it is imperative that YouTube be able to distribute a user’s content without specific permission by the owner. This necessity for promotion leads us to another interesting phrase in the YouTube terms of service. “You agree not to distribute in any medium any part of the Website, including but not limited to User Submissions (defined below), without YouTube’s prior written authorization.” This states that no one may use any content from YouTube without Google’s permission. This prevents news agencies from using a video hosted on YouTube without obtaining written permission, therefore ensuring that Google always receives credit for YouTube videos.
Interestingly enough, YouTube takes care to state in its terms of service that the user who submits the content still “retains all ownership rights to the content.” Legally, there is very little difference between a license owner and a content owner. Therefore, while YouTube does not technically own the user content, it has essentially the same legal rights to the content’s distribution and reproduction as the owners do. However, by allowing the content creator to retain ownership rights, YouTube can avoid liability for the content. The terms of service state, “You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them”. This allows YouTube to reproduce and distribute the content as it sees fit while avoiding liability.
There is a fourth section of the terms of service that, while not expressly related to distribution rights, is interesting to note. “The above licenses granted by you in User Videos terminate within a commercially reasonable time after you remove or delete your User Videos from the YouTube website… YouTube may retain, but not display distribute or perform, server copies of User Submissions that have been removed or deleted.” Essentially, YouTube has the right to keep copies of uploaded videos on its servers forever, even if the user “deletes” them and cancels his account. YouTube may also continue to use the video for a “commercially reasonable’ amount of time. This could potentially lead to a user video being used in promotional material for YouTube, even after the creator has deleted it.
While some of these terms may seem overbearing, or even an invasion of privacy, they are far from unusual. Veoh and Vimeo, two other popular video sharing websites, recite almost identical terms of service. While one may be inclined to view this negatively, there are some positives as well. For example, in June 2009, rioting broke out in Iran over presidential elections. Iran has a state controlled media, and did not report the riots. However, due to the proliferation of video enabled cell phones and YouTube, news agencies all over the world were able to report on this story. It would have been almost impossible to obtain permission from these users before reporting on the story, and if these terms were not in place an important event would have gone un-noticed. YouTube and sites like it are becoming more and more a part of mainstream media. Regardless of your individual opinion of them, these terms are here to stay, and you should be aware of them before posting a video or even a comment on YouTube.
Attorney Mark Levy specializes in intellectual property law. Nick Andreadis is his legal intern and an Industrial and Systems Engineer at Binghamton University.