Embedding YouTube Videos & Fair Use
There are still a lot of questions surrounding Fair Use. Wikipedia defines it as “a limitation and exception to the exclusive right granted by copyright law to the author of a creative work.” It’s the doctrine that allows the limited use of copyrighted material for commentary, criticism, parody and search engines. Essentially, it’s the fuel that powers most of the Internet. You know it’s important because it has its own logo. (Still trying to figure out how that happened. Can we have a doctrine with the initials A.J., so I can have my own logo?)
This week my class discussed whether embedding YouTube videos created by others in a website without proper attribution was in violation of copyright. Thinking back to the Xanga sites and MySpace pages I built as a sixth grader, I could feel the money flying out of my pocket. That was back near the beginning of YouTube – about two years before Google acquired it. This was also in the DRM strangled post-Rhapsody days, so everyone had a file-sharing client and played pretty fast and loose with the rules. (I plead the Fifth. I was also 11.)
I thought the claim this was a violation of copyright was flawed, and the Internet appears to confirm that. It also appears to have zero things to do with Fair Use. CNET posted “Embedding copyright-infringing video is not a crime, court rules” in August of 2012. The article discusses ruling written by Judge Richard Posner, U.S. Court of Appeals, Seventh Circuit, Flava Works Inc. vs. Gunter, dba MyVidster.com (2012). (Don’t you just love these Internet age court case names? Flava Works also happens to be a porn site.)
The Case & The Ruling
Users of MyVidster posted a number of Flava Works productions on its website via third-party web sites. (Obviously not YouTube because they were porn but same principle.) The court ruled MyVidster was doing the same thing The New Yorker does when it lists the names of plays, times and locations of performances.
A writer for the Geekosystem points out an important piece of the ruling,
“…as long as the visitor makes no copy of the copyrighted video that he is watching, he is not violating the copyright owner’s exclusive right… His bypassing Flava’s pay wall by viewing the uploaded copy is equivalent to stealing a copyrighted book from a bookstore and reading it. That is a bad thing to do (in either case) but it is not copyright infringement.”
LawTheories.com dissented from the fray of tech sites singing the praises of free video embedding. Devlin Hartline of Law Theories points out Judge Posner said the case likely would have turned out differently if MyVidster promoted the uploading of the copyrighted work by its users.
“As the record stands (a vital qualification, given that the appeal is from the grant of a preliminary injunction and may therefore be incomplete), myVidster is not an infringer, at least in the form of copying or distributing copies of copyrighted work. The infringers are the uploaders of copyrighted work. There is no evidence that myVidster is encouraging them, which would make it a contributory infringer.”
The above information seems to validate my claim, but the question I posed in class was even more specific. “Is it a copyright violation for me to embed a YouTube video on my website without attributing the source?” Even without the above court ruling, I believe the answer is no. That answer can be found in the least read of all things – the Terms of Service Agreement.
“… by submitting Content 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 Content in connection with the Service and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service. The above licenses granted by you in video Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your videos from the Service. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of your videos that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable.”
Thus, you CANNOT be guilty of copyright infringement for reposting material by embedding it without attribution because the content owner gave other YouTube users the right to distribute their content.
Of course the next line in the agreement is, “You further agree that Content you submit to the Service will not contain third party copyrighted material…” However, even if you repost copyrighted material on accident, the above case ruling should keep you out of prison.