YouTube upload

[This is the latest column from Tubefilter News’ resident new media legal expert, James C. Roberts. Last time in Part 1 of a two-part series on ownership rights at major video sites he tackled reader questions on video uploading to Facebook. This week’s the series concludes with a deep look at the YouTube TOS. ]

In the last column we discussed how ownership of posted videos is affected by the TOU/TOS (Terms of Use/Terms of Service) for Facebook. This time we turn to the TOS of the gejillion pound behemoth, YouTube. So, the question is:

Do you own the videos you post on YouTube?

The answer: Yes.

But that’s not really the right question. Here are two more:

Can YouTube use all or part of your videos?

The answer: Yes. The YouTube TOS has you giving a license to them.

Can other YouTube viewers use all or part of your videos?

The answer: Yes, but with some limits. It’s a license from you to other viewers.

For those of you too impatient to read the rest of this column, the license language is vague enough that YouTube could claim that it can do what it wants with your video. However, there is enough limiting language that such use might be restricted primarily to promotion. As for other viewers, there are limits but the problem is that viewers will not read the limitations and even if they did they would have to be pretty savvy in reading legal language.

In other words, there is a risk that YouTube would use your videos as they see fit but it is unlikely. As for other YouTube viewers, they are not permitted to use your video except for personal uses, but it is unlikely that any viewers will read the TOS, let alone find the restrictions on their use.

So, there are risks but they are ones most video creators will take.

Let’s take these questions one by one.

1. As between YouTube and you, who owns your video?

Section 6.B of YouTube’s TOS makes it clear that you own the “Content” that you post. (For purposes of this column we’ll accept the definition of “Content.”) Quoting from that section:

For clarity, you retain all of your ownership rights in your Content.

Your sigh of relief may be premature. Read on.

2. Can YouTube Use All or Part of Your Videos?

This is where it gets tricky. While you own the video, by operation of the TOS you grant YouTube a license to use the video. The question, then, is the scope of that license—i.e., what YouTube can do with it? Here’s the language, also from Section 6.B:

[. . .] However, 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. [Emphasis added.]

A complete analysis of this language would run many pages, so let’s cut to the chase: The license is for everywhere and on every conceivable medium. YouTube can also prepare derivative works, too.

The question, though is how YouTube can use it. Let us repeat the relevant language. YouTube can use 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[.. . .]

At the moment, YouTube’s business is displaying (and distributing) videos. But what if they change their business to creating content? Then there could be trouble. Let’s look at the real world, as that change is not likely unless YouTube’s growth slows or its UV numbers decline.

One could also argue that use is only in connection with their business and promotion and distribution except that the language that says “including without limitation.” If it were only for those two uses then that language should say

[. .] in connection with the Service and YouTube’s [. . .] business including without limitation solely for promoting and redistributing part or all of the Service[.. . .] [Strikethrough and emphasis added.]

3. Can other YouTube viewers use all or part of your videos?

The next sentence of 6.B grants a license from you to other YouTube viewers:

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.

It’s sort of the same problem as the license to YouTube, because there is the right of use. OK, here’s where it gets a bit trickier, because you have to find out if there are restrictions on that use elsewhere in the TOS. Sure enough, there are. That’s the good news. The bad news: Those restrictions are in another section, 5.B, which reads in part as follows:

[. . .] You may access Content for your information and personal use solely as intended through the provided functionality of the Service and as permitted under these Terms of Service. You shall not download any Content unless you see a “download” or similar link displayed by YouTube on the Service for that Content. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of YouTube or the respective licensors of the Content. YouTube and its licensors reserve all rights not expressly granted in and to the Service and the Content. [Emphasis added.]

Well, that is indeed a relief. True, it is buried, but at least the language limits the license granted to the other Viewers. It should be better language and it should be with the section on the Content quoted elsewhere in this column. In a better world, it would pop up every time someone tried to use it but we live in this world.

Anything Else?

Happily, the licenses are limited in duration. They last until you remove or delete your videos. That works.

Conclusion. (A sigh of relief.)

Yes, you can sigh with relief now (we know that the suspense was killing you). As for as a grant of rights, YouTube’s TOS is relatively clear. As far as reality is concerned, those rights, and their limitations, are probably not enough to keep others from using your videos. At least now you know more about how to read a TOS.

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James C. Roberts IIIJames C. Roberts III is the Managing Principal of Global Capital Law Group and CEO of the strategic consulting firm, Global Capital Strategic Group. Between the two groups there are offices in California, Colorado, the East Coast, Shanghai and Milan. He heads the international, mergers & acquisitions and transactional practices and the industry practices concentrating on digital, media, mobile and cleantech technologies. Mr. Roberts speaks English and French and, with any luck, Italian in the distant future. He received his JD from the University of Chicago Law School, his MA from Stanford University and his BS from the University of California Berkeley. Have a question? Email James

This ‘Ask the New Media Attorney’ post discusses general legal issues, but it does not constitute legal advice in any respect. No reader should act or refrain from acting on the basis of any information presented without seeking the advice of counsel in the relevant jurisdiction. Tubefilter, the author and the author’s firm expressly disclaim all liability in respect of any actions taken or not taken based on any contents of this post.

(Top photo by @Photo/Michael O’Donnell.)