Is Posting a YouTube Video on a Blog a Copyright Violation?
posted by Daniel Solove
With YouTube, bloggers can embed videos on their blog, so that it appears as though the video is being played on the blog’s page. For an example, see this recent post by Dave Hoffman.
Over at the VC, Orin Kerr ponders the question of whether using a YouTube video in one’s blog can be a copyright violation. Orin repeatedly warns us that copyright isn’t his area, but the question and Orin’s discussion of it are interesting:
Is it copyright infringement to provide a link to a file hosted on YouTube that is likely an unauthorized copy, and to invite readers to view the file? Copyright is not my area, so maybe my legal analysis is way off. But my sense of the answer is “probably not.” The primary issue is liability under the principles of contributory infringement. As the Supreme Court explained in Grokster, “One infringes contributorily by intentionally inducing or encouraging direct infringement.” Contributory infringement generally requires (1) knowledge of the infringing activity and (2) a material contribution to the infringement.
The law here is really murky, in part because there are so few cases (DMCA notice & takedown letters usually address the problem before a lawsuit is filed), but I think I’m probably not liable. First, I don’t think a link in this context amounts to a material contribution to the infringement. The file I linked to is very widely and publicly known. If you google the song name, the file is the second link that appears (right after the Wikipedia entry). The clip has been viewed over 125,000 times in the last year. Further, YouTube is one of the most visited sites on the Internet, and everyone knows that you can get music clips there: just go to youtube.com and search for “cantaloupe island” and this clip is the first thing that pops up.
Given that, I don’t think my linking to the file is a “material” contribution to any infringement. Yes, my link singled out the widely known clip for its musical excellence; but I see that as pointing out which of the widely-known clips on YouTube is musically strong, not doing the work of locating and pointing out the infringing clip. Given that, I don’t think linking to it materially contributed to any infringement: a YouTube link in this context strikes me as more like the link in Perfect 10 v. Google, Inc., 416 F.Supp.2d 828 (C.D.Cal. 2006) than the link in Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, 75 F. Supp. 2d 1290 (D. Utah 1999).
A while back, I posted a blog post that pondered some of the issues involved with copyright and the blogosphere. My post was entitled: What If Copyright Law Were Strongly Enforced in the Blogosphere?
I’m not so sure that copyright law is as sensible as Orin suggests. I’m not a copyright law expert either, but under some of the extreme decisions regarding copyright law coming out these days, I wonder whether Orin’s common-sense interpretation will prevail. Perfect 10 v. Google involved thumbnail images that pulled up in Google’s search results; the court found no infringement. The YouTube links display the actual video on a blog’s page — although the video is stored at YouTube, it looks exactly as if it were posted directly on the blog itself. This is more than just linking or just including a smaller thumbnail image in a search result. By embedding the YouTube video at the VC, Orin is creating the functional equivalent of the video existing at the VC.
All this said, I believe as a normative and policy matter that using YouTube videos in one’s blog shouldn’t be infringement. But legally, I think that the question is quite difficult. Orin notes that he found the law to be very murky in this area. I agree. When it comes to copyright, here’s my rule of thumb — if it’s reasonable and fair, then it’s probably not the law.
November 26, 2007 at 8:25 pm
Posted in: Intellectual Property
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Responses (4)
Sam Bayard - November 27, 2007 at 9:19 am
I blogged about this topic a few months ago at
http://www.citmedialaw.org/embedded-video-and-copyright-infringement
Sam Bayard
Assistant Director
Citizen Media Law Project
AF - November 27, 2007 at 12:09 pm
It seems to me that watching, as opposed to posting, an infringing video on YouTube is fair use. A single viewing of an Internet image or video, while technically copying, seems to be an act of fair purpose and character. This is what the Ninth Circuit held in Perfect 10. See pages 5787-88 of the following link: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/DE8297F56287C0BC882572DC007DACC6/$file/0655405.pdf
It is hard to imagine a court ruling otherwise, or indeed to imagine a copyright owner suing mere web surfers (as opposed to YouTube posters, music or pornography downloaders, etc.) for copyright infringement.
I therefore disagree with Sam Bayard’s argument, in the above-linked post, that Google has a stronger defense against contributory infringement in its search engine than does a blogger who posts a link to copyrighted video on YouTube. While Google may have less knowledge of any specific act of copyright infringement, it does, in fact contribute to copyright infringement in the form of unauthorized commercial reproduction or downloading. A blogger-linker probably does not contribute to any direct infringement, since viewing a YouTube video is fair use and not infringement.
Bruce Boyden - November 27, 2007 at 12:13 pm
Dan, why stop with copyright? I’m sure a number of people would agree with you that if it’s reasonable and fair, it’s unlikely to be the law generally.
It’s true that the law here is somewhat murky, particularly outside of the 9th Circuit. Given that the whole situation is still somewhat novel, and there is relatively little caselaw, I’m not sure why murky law should be viewed as a failure, rather than a virtue, of the legal system.
adm - November 29, 2007 at 7:01 pm
I don’t think we’re likely to see litigation on this matter unless and until the blog on which the video is embedded is one that actually makes money AND the owner of the video is wealthy and out to make a point. Because YouTube doesn’t “own” the videos in question, and the individual YouTube members who post the videos probably do not have the resources or incentive to go after an unpaid blogger just to stand on principle. Moreover, the owners of the videos (the YouTube account holders) can simply remove their videos from YouTube and re-upload them in order to break the link used by any blogger – kind of a “do it yourself” injunction.
Perez Hilton, TMZ, etc. post YouTube videos all the time and haven’t been sued.
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