November 16, 2006  ·  Lessig

A bit ago I wrote (here and here) about a difference between true and fake sharing, pointing out that YouTube, rightful darling of the Internet moment, was a fake sharer. I hadn’t realized then just how seriously they took this limit: Read here as TechCrunch describes the notice and takedown they received for some code that allows you to save a YouTube video to your machine.

You might wonder how it could be a problem to save a YouTube video to your machine, when it isn’t a problem to save a television show to your VCR? Welcome to the terror of the Terms of Service world: Whether or not it is a violation of copyright law (which it isn’t, though the lawyers for YouTube seem to assert to the contrary), the view of many is that “fair use” rights can be promised away just as your first born male son can be promised away (wait, except he can’t).

Anyway, without risking more red-baiting, let me simply opine: For a company that was built upon the unauthorized spread of other peoples’ copyrighted work to threaten legal action against someone simply enabling people to save that work to his machine deserves at least special mention in a book by Alan Dershowitz.

  • Jim Carlile

    Interesting. Americablog reported today that YouTube had also sent a cease and desist and ordered a poster to remove Bill Maher’s Larry King ‘outing’ of the RNCC’s Ken Mehlman: http://americablog.blogspot.com/2006/11/cnn-tells-youtube-to-pull-down-video.html

    Apparently, there’s no concept of fair use on YouTube. To give them the benefit of the doubt, I wonder if they are suddenly being threatened by scores of content holders?

    If so, the days of posting incriminating media videos may be close to an end.

  • http://dogmazic.net/ bituur esztreym

    enough reading article 5-B of youtube’s Terms of use to make it clear what they consider fair use : regardless whatever you may specify as licensing terms on your works, i quote most significant phrase in bold..
    anyway, it’s rather only-for-youtube’s-wallet-&-stockoptions-fair use… isn’t it ?

    “For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting the 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 and YouTube’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service. The foregoing license granted by you terminates once you remove or delete a User Submission from the YouTube Website.

  • James Day

    The significant part appears to be the limitation “as permitted through the functionality of the Website”, which limits the rights uploaders are granting others to only allowing what the YouTube web site functionality permits.

  • James Day

    Of course, that reading is somewhat unelpful to YouTube’s case, since their web site does provide the functionality of downloading video, as described by Erica Sadun. If they want their more restricted reading, it appears that they need to distinguish between what their web site will do and what their normal user interface will do.

  • http://sethf.com/ Seth Finkelstein

    Updated article

    Summary: Grab the video file out of the cache.

    This will work until the Broadcast Flag is passed … or Microsoft monopolizes the world enough to implement it by fiat.

    YouTube: “Fair Use For Me But Not For Thee”

  • three blind mice

    YouTube is a business whose revenue model is based on advertising.

    yes, it’s true. YouTube “is pursuing advertising as its business model, and is exploring a range of possibilities including promotions, sponsorships, contextual-based advertising, traditional banner advertising, etc.

    defenders of fair use and champions of the community of sharing, YouTube makes money from advertising, just like those any other tv broadcaster.

    and just like any other tv broadcaster, YouTube rely on copyright to protect the exclusivity of their broadcasts.

    the copyright buck has to stop somewhere.

  • lucychili

    I doubt that our legal system will find that an anomaly.
    The central brokering entitiy needs a way to get money.
    Where the value is generated is not part of the traditional mindset.
    We have laws for brokers but not for people.
    Perhaps that is the traditional contour.
    Sorry feeling a bit jaded today

  • Mr Steer

    How can you blithely assert that it is a fair use to make and save a reproduction of copyrighted YouTube video onto your computer? This seems to be paradigmatic copyright infringement.

    Even a cursory analysis of the fair use doctrine indicates that, in most typical circumstances, reproduction of YouTube videos would be far from a fair use. Many YouTube videos consist of portions of commercially released, copyrighted, and highly creative films and pay TV shows, and were loaded without the authorization of the copyrighte holders. Other YouTube videos may have been loaded by the actual copyright holder/creator, but were loaded with the understanding that they would only be performed/streamed, not reproduced/dowloaded. Most YouTube video copiers are doing so for their own personal pleasure, not purposes of research, commentary, scholarship, etc. Their very unauthorized uploading and popularity indicates there is a market for them, and if the uploading is unauthorized, that the market is being harmed. Though YouTube limits the size of the video that can be uploaded, the size allowed still constitutes all, or a significant portion, of the entire video.

    Finally, YouTube isn’t free, over-the-air television, so your analogy to copying television to a VCR is misleading. Under even the most tortured reading, the Betamax case does not stand for the proposition that any reproduction of an audiovisual work is a fair use.

  • lessig

    Mr. Steer:

    Many YouTube videos consist of portions of commercially released, copyrighted, and highly creative films and pay TV shows, and were loaded without the authorization of the copyrighte holders.

    Then its not YouTube that should be complaining.

    Other YouTube videos may have been loaded by the actual copyright holder/creator, but were loaded with the understanding that they would only be performed/streamed, not reproduced/dowloaded.

    Did the holders of the copyrights in Betamax have an understanding their TV shows would be recorded?

    Most YouTube video copiers are doing so for their own personal pleasure, not purposes of research, commentary, scholarship, etc.

    As in Betamax.

    Their very unauthorized uploading and popularity indicates there is a market for them, and if the uploading is unauthorized, that the market is being harmed.

    Again, vis-a-vis YouTube, this isn’t an argument.

    Though YouTube limits the size of the video that can be uploaded, the size allowed still constitutes all, or a significant portion, of the entire video.

    Betamax didn’t turn upon people recording just part of the show they wanted to watch.

    Finally, YouTube isn’t free, over-the-air television, so your analogy to copying television to a VCR is misleading.

    YouTube is precisely as “free” as TV — you get no rights by receiving it, but you pay nothing to get it. And what in Betamax turned on the method of transmission?

    Under even the most tortured reading, the Betamax case does not stand for the proposition that any reproduction of an audiovisual work is a fair use.

    Well, with this I would agree, unless it was intended as a reading of what I wrote. My view is not that “any reproduction of an audiovisual work is a fair use.” Nor have I said it is.

  • http://sethf.com/ Seth Finkelstein

    Betamax seems pretty much black-letter law on this case here, though I’m not a lawyer:

    “Private, noncommercial time-shifting in the home satisfies this standard of noninfringing uses both because respondents have no right to prevent other copyright holders from authorizing such time-shifting for their programs, and because the District Court’s findings reveal that even the unauthorized home time-shifting of respondents’ programs is legitimate fair use”

    Later:
    “The District Court concluded that noncommercial home use recording of material broadcast over the public airwaves was a fair use of copyrighted works and did not constitute copyright infringement. It emphasized the fact that the material was broadcast free to the public at large, the noncommercial character of the use, and the private character of the activity conducted entirely within the home. Moreover, the court found that the purpose of this use served the public interest in increasing access to television programming, an interest that “is consistent with the First Amendment policy of providing the fullest possible access to information through the public airwaves. Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102 .” Id., at 454. 8 Even when an entire copyrighted work was recorded, [464 U.S. 417, 426] the District Court regarded the copying as fair use “because there is no accompanying reduction in the market for `plaintiff’s original work.’” Ibid.”

    All factors – material “broadcast” free, noncommercial character, private. home – seem applicable to saving a YouTube file.

    “One may search the Copyright Act in vain for any sign that the elected representatives of the millions of people who watch television every day have made it unlawful to copy a program for later viewing at home, or have enacted a flat prohibition against the sale of machines that make such copying possible.”

    By the way, at least on my Linux machine, the process of watching a YouTube video already saves a file onto my computer.

  • http://www.digitalproductions.co.uk Crosbie Fitch

    “By the way, at least on my Linux machine, the process of watching a YouTube video already saves a file onto my computer.”

    I think the idea is that you’re meant to ignore the man behind the curtain.

  • http://3mb.ru liohaa

    Though YouTube limits the size of the video that can be uploaded, the size allowed still constitutes all, or a significant portion, of the entire video.

  • http://www.mystead.com B Jones

    I can’t believe that youtube would do this. It just doesn’t make sense. Well it’s still very very easy to download youtube videos. Especially if you use a mac and safari. Just open your activity window while you are watching a video on youtube, look for the larger file ~1MB with a flv extension, copy and paste the address into the browser window, and bingo.

  • Ralph Elliott

    er …, surely in sending the c&d to TechCrunch GooTube are having a laugh at someone’s expense: my browser currently shows a YouTube page with the ad immediately above the video insistently flashing the message “Download this YouTUBE video to your PC …” with a link — via Google syndication of course — to quivic.com.

  • Jim Carlile

    I’m confused by some of the posters here: those who seem hostile to any kind of expansive definition of “fair use.” Or even the accepted definition.

    Since the doctrine of “fair use” clearly allows someone to utilize copyrighted materials for critical comment or analysis, it doesn’t matter what YouTube claims is their right to withhold or distribute materials in their own way. They can say anything they want to, but if someone wants to download materials to use or share legally under fair use, their exclusive distribution claims– if that’s what they are– are irrelevant. Who cares what YouTube says, and so what if it’s part of an advertising model?

    Obviously, YouTube doesn’t believe in fair use in the digital age, so instead of defending, say, a poster’s clearly legal download of the Bill Maher CNN fragment for commentary purposes, they’re going after them.

    I’m curious about something. Why are so many people now so incredibly hostile to the concept of fair use? Is it too much Ayn Rand or something?

  • ACS

    Betamax doesnt apply to YouTube. Betamax allowed timeshifting because the free to air broadcast was at a specific point in time. The same policy can’t apply if you can always access the medium (in this case Youtube).

    It is not time-shifting if you can continue to have access the broadcast (loathed as I am to use that term in respect of the internet).

    Anyway – the broader point is one of WHO OWNS THE COPYRIGHT IN THE WORKS – Has anyone actually looked at the YouTube terms of service – does it involve an assignment of copyright? Is that assignment valid? If not then YouTube cant prevent downloading the materials, can it? Is there some other terms of service with each viewer not to download? and how is that enforced? Do they have a right against a third party offering software to infringe copyright in those circumstances?

    Looks to me like a storm in a teacup.

  • Jim Carlile

    Betamax didn’t revolve around time-shifting as the basis for the opinion, it didn’t ‘turn’ on time shifting.

    YouTube’s presumptions are confusing, and as noted previously the last few years, dubious. They confute distribution with ownership, and interestingly enough don’t even bother to confer with the property holders about their wishes when it comes to the ability to download.

    I worry about a test case here, for in this hypercapitalist age, where property rights are everything, and everything is property rights, it would take a pretty astute court to advance Betamax into the digital age if pressed.

    And would they hold YouTube responsible for allowing someone else to copy material from their site, or would they just tell the creative “owner” to make it available on their own, that that ability was sufficient? I’m not hopeful.

  • Jim Carlile

    Not to be tedious, but I wanted to add that when it comes to Betamax, I always thought it was funny that the Court saw time shifting as a strong (but not only) example of a substantial non-infringing use.

    The big joke back then is that no one could figure out how to use the timers on those big VCRs, and because of that, I wonder how many people actually used them for time shifting? Even if you could, it still meant that you had to have the cable box on all day while taping that soap opera.

    I don’t know anyone who ever did this, and I suspect that most people used VCRs to build up a tape library of their favorite shows.

    Regardless, time-shifting was a good ‘icing on the cake’ argument that helped add to the other legitimate non-infringing uses of Sony’s equipment, and thus the court ruled in favor of them. I wonder if they would do so now?

  • Lessig

    I wonder too. I recall the briefs in Grokster pointed out that the content industry in the Betamax case had alleged that 91% of the uses of the VCR were illegal — the same percentage alleged (within a point or two) about p2p filesharing.

    But to emphasize the point about “time-shifting” — sure, television shows are only broadcast at fixed time, so time-shifting compensates for that in a fair-use like way. But the same is true with YouTube — we don’t live in a world where we have persistent broadband connectivity. One might download a YouTube video, e.g., for a presentation (I’ve done that lots), or to show someone else when not online.

  • http://zohguy.blogspot.com Zohguy

    There is a common joke in Brazil to describe this kind of situation: “The only good lawyer is the one that is like beer. Cold and over the table.” If you know what I mean… Heheheh. Anyway it’s just a silly joke. (:

    Ps.: Did you have any success using the “human” field at comments?