Inconsistencies in YouTube Copyright Policies and TechCrunch’s Big Boost to YouTube’s PR Campaign

November 15th, 2006

Youtube is struggling to plug the dike as copyrighted material pours through, as shown by its Summary Judgment motion (posted by Mark Cuban) in the LA Riots video case, and by the cease-and-desist letter sent to Michael Arrington.
Cuban and the court point out a disconnect in YouTube’s policies. In its motion YouTube claims the most obvious and seemingly best defense, that is is a service provider “conduit” under the Digital Millenium Copyright Act and falls within the SMCA’s safe harbor provisions if it promptly takes down copyrighted material on notice that unlicensed material has been posted to its site. On the other hand, YT’s Terms of Use say that users grant YT a license to use, perform, display (etc) video content when users upload the content.

It seems hard to have it both ways- either you are a conduit or a licensee. Being a licensee is well and good when users are posting home video to which they own the rights. YT thus gains the security of knowing that the users have agreed to allow YT to distribute the content for them. If the user doesn’t own the rights though, claiming a license is completely worthless. The LA Riots court even holds out the provision as evidence that YT takes on for itself the “right and ability” (emphasis added) to control infringing activity. This reasoning, if widely followed, would makes the license an actual liability.

Of course, if the user had no ability to grant a license, YT couldn’t take one. Reasonable minds could reach different conclusions as to where the license language puts YT relative to the DMCA’s safe harbor provision, which again is not a great place for YT to find itself.
Mike Arrington professed surprise that YT would take issue with a piece of software that lets YT users download videos to their hard drives. It strikes me that YouTube has no choice but to move against these kinds of activities, though. It needs to portray itself in every possible way as working within the DMCA framework. A tool that lets users make their own copies of videos effectively turns YouTube into Napster, and we all know how that story ended.

The Grokster case says that web site operators may be liable developing software “the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement”. YouTube’s letter to TechCrunch seems designed to shift the burden of proof there by taking public steps to discourage potential copyright violation (without causing YT traffic to suffer!).
The more I think about it, the more Mike’s public response to YouTube’s letter could end up as a PR bonanza for YouTube. There may be dozens of tools for downloading video and YT may be sending letters to the authors of all of them, but in a single stroke it has managed to let hundreds of thousands of readers know that YouTube stands against anything that might facilitate copyright violations.

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