You Tube Terms of Use

Saturday, September 9, 2006

Boing-Boing raised an interesting question about the new you tube Terms of Use which "appears to give YouTube more rights over user-uploaded content than before".

Let's discuss the Part 5 B of the You Tube Terms of Use...
You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize YouTube to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Website and these Terms of Service.
This is the standard Representation and Warranties clause commonly exist in contracts. The Reps are meant to explain that there is a legal link between a person and the copyrighted product. The warranties are sets of statements which guarantees that the Reps are true and accurate. I don't think there's any problem with this part.
For clarity, you retain all of your ownership rights in your User Submissions.
The bold part and the "for clarity" words are not clear. Is it meant only as an explanation, or does it meant to explain a "general rule", that those who submit videos retain all of their rights?

And then it says...
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.
#1 Here comes the disputed part. Should it be interpreted as You Tube now retaining the license of the User's content, to reproduce, distribute, prepare derivative works of, etc? As it contained the word "However", does it serve as an exception of the general rule above? Wouldn't that be too broad? Wouldn't that render the general rule above inapplicable?

Then comes the license to everyone:
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.
#2 This part is also problematic. Does this means that when someone submit a video, then it automatically licenses everyone to "use, reproduce, distribute, prepare derivative works of, display and perform" the videos?

And the Termination part:
The foregoing license granted by you terminates once you remove or delete a User Submission from the YouTube Website.
The Blogosphere have several interpretation for this provision:

1. David Gulbransen who commented at Boing-Boing says:
It continues, "...The foregoing license granted by you terminates once you remove or delete a User Submission from the YouTube Website." That last little bit is pretty important. It means that if you remove the work from the YouTube site, they have to stop using your work. So there is some protection for users who have uploaded original content. If YouTube were to sublicense your content to an advertising agency, for example, and you were to remove the content--thus revoking the grant under the terms of the agreement--then the agency's license would be revoked as well.
2. However, Mary Hodder at suggested:

I would say that term means that once an uploader/copyright owner removes the video, they then revoke their license to the YouTube community. I would therefore disagree with David Gulbransen who left a reader comment on Boing Boing. I don’t think Gulbransen is correct in his interpretation of this provision which he says would mean that once any user took a copy of the video from YouTube, the license would be nullified. I do think the provision has to do with the owner removing the video. Basically, all along, lawful uploaders have been giving YouTube full commercial reuse rights. Which is reasonable considering they are hosting their videos.

I would disagree with Mary's interpretation. There are two kind of license in You Tube's ToU, that is the license to You Tube (see #1 above) and the license to everyone (see #2 above). Both license stands in the same paragraph and that paragraph is closed with a termination clause which will become active when a user remove the videos from You Tube.

The termination could trigger problems, especially when it deals with derivative work. A derivative work is a work that is based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted, also a work which consists of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship.

If, for example, I take a character of an Independent movie in You Tube (let's say, Marge Sampsons or something), I'd be licensed under the "derivative work" clause. Suppose I created a movie based on that character and I sell the Marge Sampsons dolls and I gain some profit because of it, but suddenly, the You Tube Submitter delete the video, would that mean that I have to stop my movie and retract my dolls from the market?

And there could be another problem with the assignment of rights:

These Terms of Service, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by YouTube without restriction.

Would it mean that if I submit something to You Tube, I cannot license or transfer the rights to a third party? Wouldn't that be too restricting for the submitters?

It is understandable that You Tube wants to save themself from any possible lawsuits and this kind of licensing is the safest way for them. However, it has drawbacks:
  1. In some points, it can take away the moral rights of the author from its work as there is no provision for obligatory attribution of work
  2. Problems could arise when the license terminates. Once something is publicized, it becomes uncontrollable as it spreads on the net. When I license everyone, then it should be for good, as it would be impossible to nullify it.
So, why not use a Creative Commons license instead?

For the boing-boing post, read here.
Click here for the complete You Tube Terms of Use
Read Mary Hodder's full article here