YouTube: The Big Copyright Lie

I'm a big YouTube fan.

We can thank YouTube for cutting the gordian knot of video codecs. Instead of futzing around with codecs and media players, YouTube's universal, Flash-based web video "just works". After all this time, it turns out the killer app for Flash wasn't advertising or web games. It was video. It's a cross-platform model Microsoft is aping with Silverlight, and for good reason.

This is a companion discussion topic for the original blog entry at:

Let’s just say I know of someone intimately familiar with the issues involved from youtube’s side and what she told me about this issue as I understand it:

youtube does not delete videos with potentially copyrighted material for one simple reason. If they took proactive steps to remove, say, a Daily Show clip, but then failed to remove a copyrighted commercial from the 80s they would be liable under the DCMA for failure to pro actively remove other copyrighted content. Therefore, youtube instead takes the approach of removing no content unless the copyright owner asks (and they also provide tools to make this easier).

Very good points – but YouTube is also a href=""dropping the ball/a by not actively educating its users about fair use and helping them put that doctrine to work in a constructive way. Which is odd, given that Google is trying to shape that debate in a href=""other venues/a right now.

Go search for ‘glassblowing’ on YouTube. If you are a glassblower, you may be interested in all the sample videos of Italians doing weird stuff and the Bristol Blue Glass guys doing cups. (not GREAT cups, but cups… This is not an ad for their stuff.)

Here I was thinking that Viacom suing YouTube for ONE BILLION DOLLARS counted as ‘not skating by’. Forget that one sparky?

The reason is both simple and clearly laid out in copyright law:

It’s NOT YouTube that’s breaking copyright law, but the person who is doing the uploading. It is not YouTube’s responsibility to police it, any more than it’s AOL’s responsibility to make sure you’re not downloading unauthorized content. YouTube is simply the platform.

On top of that YouTube simply has no way of knowing what’s authorized and what is not. There are content creators out there who want people to share their stuff on YouTube, knowing that it helps get them more attention – and there’s simply no way for the folks at YouTube to know which stuff is approved and which is not.

I’ve never liked YouTube, myself.

Fragile content, line-noise link names, and low-quality video I can’t save?

(And, Jesus, the Comments. Save us all from the comments, Jebus. YouTube comments, for the most part, make comments and AOL chat rooms look like academic discussion.)

[ edit: so true, see this XKCD comic ]

Why on Earth would I want to bother with that? No thanks.

The copyright infringement is blatantly obvious, but since most of the copyrighted material being viewed is benefiting the the source, via increased recognition and/or sales, the number of claims against YouTube is relatively non-existent. Ironic.

The flip side is that YouTube responds to even frivolous DMCA complaints in a darn hurry. The long and short of YouTube is the DMCA: as long as there are not a pile of Viacom like lawsuits (which argues pretty what you argue) they will continue to exist in the space between the DMCA safe harbor and the complaint.

If you really feel that using the safe harbor in this manner is abuse (and avoiding becoming an editor is a great excuse for doing so; otherwise they become liable for all content) then throw in with companies like Viacom and sue them for all the content they used of yours without permission. I’m not aware of any though, so I guess you will have to simply stare at them with righteous indignation for the legal hack they have performed.

The sad thing is that if Viacom has a full victory in the courts, the DMCA safe harbor will become a thing of the past and we will all be liable for anything our users post. This will lead to most sites prohibiting user contributions. So, I’m hoping that Viacom loses or wins on a very narrow ruling that avoids that outcome.

Everything you say is correct (although it’s probably worth pointing out that copyright law gets even more complicated if you don’t live in the US and upload to YouTube).

However it seems pretty clear to me that YouTube enjoys legal protection under the safe-harbor provisions of the DMCA. That’s got more to do with YouTube’s legality than fair-use (IANAL, etc, etc).

It’s less clear what the alternative is. I don’t think there’s a good technical solution for identifying copyright content, so the alternatives to the notification regime are either banning all uploads, or strong identification of uploaders.

There’s also the international-law-and-the-web thing that makes things interesting for lawyers. All these contributing factors mean that it is very hard for copyright holders to pin YouTube to the wall, as much as they would want to.

They pay lip service to copyright, while building their business on an empire of unauthorized, copyrighted content

What I’ve never understood is what YouTube’s business model actually is. The Wikipedia page says they make $15 million a month on advertising (or did at some point last year).

Where are the adverts? I’ve found one advert on YouTube, right at the bottom of their “YouChoose ’08” page:

“Now think back through all the videos you’ve watched on YouTube. How many of them contained any original content?”

While I understand your overall point, IMO you have overemphasized the idea that YouTube only stores copyright-infringing content. For that question I quoted I could promptly say I’ve seen quite a lot of original content. Remember that many people got their minutes of fame because of YouTube, like funtwo (“Canon Rock”), Lasse Gjertsen and The Blindfolded Pianist (who now tours worldwide with the Video Games Live crew). There’s also some professional artists that publish their own works for promotion, so it would also count as original.

Oh, also I often watch videos of kittens and stuff on YouTube. They tend to be original.

YouTube hasn’t been completely left alone by the entertainment industry, a quick search on Google will show that they’ve had at least a couple of lawsuits come their way.

On the other hand, I think the length limit is probably the biggest thing keeping them from getting slapped with a major lawsuit from the major hollywood studios. They’re still so worried about people downloading full movies through P2P software in the days before (and right after) the movie is released in the theater that they probably don’t have a lot of time to think about YouTube users posting 3 minute clips of the movie, especially when they can just send a copyright notice and have the movie removed (though they have to keep doing it over and over again).

There are still a lot of protections in place for sites like YouTube, but in the end they’re still subject to some judge deciding there’s no legitimate use for their site and shutting them down. I think the movie and TV industries are still trying to figure out if a move to make that happen would backfire on them the way shutting Napster down backfired on the music industry.

"…they make no effort to verify that the uploaded content is either original content or fair use."
As far as Europe is concerned you must refrain from any editorial actions if you wish to enjoy such exemptions. The fact that they are agnostic toward the content makes their position comparable to ISP’s. This means they just need to comply with take-down procedures and not be in violation of copyright.

And I think copyright in digital age is dangerous and useless :slight_smile:

“Virtually everything of interest on YouTube is copyrighted content.”

Everything on YouTube is copyrighted, even home made movies with kids falling off bikes. This (as I’m sure you know) is how copyright works.

I agree with most of what you say, but I do think there’s enough legal material for them to survive without the rest. Apart from “independent” material uploaded by the original creator there’s also thousands of movies shared by TV channels, record companies and so on.

It wouldn’t be a YouTube on the same scale as today though.

Jeff - I asked some of these same questions (see signature URL) over a year ago citing specific examples of content linked. You can easily view the most current concert videos (like Van Halen’s much heralded tour) on YouTube and you know the vast majority of this stuff is being taped without permission.

I’ve also written several times that Google is on very shaky ground with this copyrape situation, including today. It wouldn’t surprise me if they lose the lawsuit and then the stock takes a tumble backwards. YouSued is Google’s Achilles heel.

The biggest thing stopping the movie and TV industry from shutting YouTube down is that it would be very unpopular, would not stop what YouTube do (much like shutting down Napster did not stop P2P file sharing) and is not really a problem anyway, how many complete movies or TV shows are on YouTube? How many are in good enough quality that you would actually consider watching them?

Watching a 5 minute clip in a browser window as flash video is bearable but full screen the quality is mostly dire and appears to be limited by the format?

“The typical YouTube clip does well on the last two factors of the fair use test, but utterly fails the first two. This is not good, because the factors are listed in order of importance; the transformative and nature tests are considered the most significant factors by courts.”

I think there are 2 reasons why YouTube has avoided a lot of the legal challenges that P2P networks have faced:

  1. As pointed out, the length of the videos really doesn’t make it worth while.

  2. While the first two point are the most important to the courts, the fourth one is the only one that matters to the copyright owners, ie the studios. YouTube is basically one giant movie trailer repository (either the official trailers or a 5 minute montage that acts as one anyway). No-one is going to not see a movie because they saw 5 grainy minutes of it on YouTube. In fact there is a very good chance that they will go and see it now that they’ve have a brief taste of what it looks like, and seen the comments of others who have seen it.

That is of huge value to the studios, there’s no real cost to them. And as long as that remains the case, there will most likely only be relatively few legal attacks.

The music movie industry perceives that P2P is hurting their bottom line. Whether it is or not is up for debate, but I don’t think there is a movie company that really thinks that YouTube is costing them viewers.