The legal issues around YouTube

YouTube has raised another $8M from Sequoia bringing the total to $11.5M. Om Malik suggests that YouTube clean up its act to avoid the legal fate of Napster. As many of you know I was a VP at the original Napster and intimately aware of the legal issues. I wrote earlier about the similarities between YouTube and Napster.

I am not a lawyer, and I don't give legal advice. But, based on my understanding of the law, the big difference between Napster and YouTube is that YouTube has "substantial non-infringing use", which was the critical legal issue in the Sony Beta-max case. If a product or service has "substantial non-infringing use" than it can not be held liable for contributory copyright infringement. However, individual users could be sued for copyright infringement. The RIAA is still doing this today.

YouTube has thousands and  thousands of videos that are not copyrighted, which are produced by independents or amateurs. Napster really didn't have any non-infringing content so the case was pretty clear.

YouTube can stay within the law by "taking down" any videos that infringe a copyright when they are notified by the copyright holder and served with a "take down" notice. They do not need to proactively search their site for infringing video. It is up to the copyright holder to notify YouTube and provide some evidence that they are the legal copyright holder. YouTube must then remove the infringing content within a reasonable time using "commercially reasonable efforts".

The other issue YouTube needs to be careful about is porn. Porn itself is not illegal..it is all over the web. However, YouTube must use "commercially reasonable efforts" to prevent minors from viewing potential pornographic material. All the major search engines have porn filters that work reasonably well. So, YouTube could solve this issue fairly easily.

If YouTube can manage these two issues they have a very bright future. Apparently Sequoia thinks so...and they have been right many times before.

Comments

[Jay Currie]

"YouTube has thousands and thousands of videos that are not copyrighted, which are produced by independents or amateurs."

In fact, and it does not alter the critical point you are making, these indy and amateur vids are copyright to their makers. The difference is that they actually own the copyright and choose to make the material available under whatever the YouTube licence is. And this is a substantial non-infringing use.

[Don Dodge]

Excellent point. Copyrighted material can be hosted and viewed on YouTube as long as the copyright holder does not object. If they object with a "take down" notice then they simply need to remove it in a timely manner.

The numbers on YouTube are staggering...35M videos, 35K new videos uploaded every day, 100M page views per day, 6M unique visitors. YouTube is bigger than MSN Video and Google Video. Pretty good company.

[SMFpmrc]

I've looked at the site and it's interesting, at least the video's aren't buffering for an hour.

As far as copyright goes...I'm curious...does the above apply when you submit your own (personal) footage, but use a copywritten song as say background music or a few second clip here 'n there. As long as you're not soliciting is it acceptable?

I would imagine that it falls under the same pretences as copywritten footage.

[Don Dodge]

I am not a copyright lawyer but my understanding is that short music clips added to an original creative work is fine. No permission necessary as long as the music doesn't become the primary focus of the new work.

This sampling concept is what allows rappers and mixers to take short clips of several different songs and mash them up with new content to form a new song.

[sciotia]

My concern, beyond minors being able to view inappropriate material, is also whether adults are protected from viewing illegal porn. As you said, porn in itself is not illegal - but some kinds of porn are. By watching this, adults could themselves be breaking the law. How would YouTube protect them from this?

[Don Dodge]

Web sites require the user to verify their age before allowing them to see porn. This supposedly prevents minors from accessing porn.

Adults are expected to use caution and their own common sense to avoid porn.

The search engines have family friendly filters that filter porn out of search results. You must explicitly change the filter to allow porn into the results.

BTW, porn is not easy to find on YouTube. You need to really search for it. You are not going to see it by accident.

Child pornography is illegal regardless of the viewers age or consent.

Now if only email had the same protections. I find the spam email with explicit porn images particularly offensive. And, many times the subject line in the email tricks you into thinking it is a safe email...only to be ambushed by porn popups.