The video revolution is underway online, and many site owners have questions about what they can and cannot use when it comes to videos on third party platforms. Let’s answer one of the more common topics raised, “Can I embed YouTube videos on my website without running into legal problems?”
YouTube and Copyright
I don’t need to tell you about the reach of YouTube. The site is beyond huge and happens to host the largest collection of user-generated video content in the world. From people dancing strangely to dogs appearing to talk, there is something for everyone.
Interestingly, there are also plenty of substantive videos available online that you can publish on your website. For example, consider a website that deals with tax issues. The IRS has released numerous videos on YouTube which you can use. These videos are highly informative. Adding them to your site is one way to keep viewers enticed, making them more likely to take the desired action that you seek.
The best method for using videos from YouTube on your site is to embed them in the code for the particular page in question. YouTube makes us incredibly simple by providing you with an iFrame code that fits nicely into any HTML code.
At this point, the legal issue of copyright should be rearing its ugly head in your mind. Simply put, haven’t you been told time and again that copying content and republishing it on your site is a form of copyright infringement? The answer is yes, but not in this situation. Why not? YouTube takes care of the problem for you.
6.C. For clarity, you retain all of your ownership rights in your Content. 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. 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. The above licenses granted by you in video Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your videos from the Service. You understand and agree, however, that YouTube may retain, but not display, distribute, or perform, server copies of your videos that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable.
The highlighted section of this paragraph of legalese gives us the answer to the embedding question. The individual uploading content to YouTube grants any user of YouTube the right to reproduce, distribute, display and perform such content. In practical terms, this means any person using YouTube can embed videos on their site if the person uploading the video activates the “embed” option when they upload the video.
**Important*** – YouTube frequently changes its terms. You need read those terms to ascertain whether the license allowing videos to be embedded on sites has changed since this article was written in September 2012. The reference to the YouTube license is still accurate as of May 2013.
On Second Thought
Does this mean that you can go nuts reposting YouTube videos all over your site? In many ways it does, but you need to be careful when considering the content in those videos. If someone has clearly uploaded a video that contains copyrighted content, the license to embed the video on your site may not protect you from a copyright infringement claim by the copyright holder.
Traditionally, the issue boils down to whether the embedding code is considered to be a “copy” of the video in question. In Flava Works, Inc. v. Gunter, 689 F. 3d 754 (2012), the Seventh Circuit Appellate District addressed the issue in a situation where members of an adult site were listing videos from the paid area of the site on a separate social media bookmarking site. The bookmarking site would then create a video preview with embedded code. The Court found no copy was made by the social media bookmarking site resulting in the termination of the infringement claim. Put more succinctly; you could not be held liable for copyright infringement merely by embedding a YouTube video on your site.
Unfortunately, the issue has become more clouded recently.
In American Broad. Cos. v. Aereo, Inc., 134 S. Ct. 2498 (2014), the United States Supreme Court issued a decision in the television show distribution field that is troubling. Aereo’s online service platform made available live broadcast television programming without a license from the copyright holders to the public. The question before the Supreme Court was whether Aereo infringed on American Broadcasting Companies’ [“ABC”] exclusive right to publicly perform its programs under the Copyright Act by offering a subscription service that streamed ABC’s programs to individual user’s computers almost simultaneously with ABC’s airing.
Aereo is a long and complicated case that does not address Internet linking. However, the case is noteworthy because Aereo admitted that when it captured broadcasts from ABC, it saved those broadcasts to its servers so that users could access the shows at a later time. Under the Flava Works decisions, this storage would constitute making a “copy” of the video and constitute copyright infringement. The Supreme Court, however, ignored the traditional copy test laid out in Flava Works and instead focused on the fact Aereo was providing a public performance of the work to a large audience in circumvention of ABC’s right to do so under copyright law.
In essence, the Supreme Court suggested the location of the storage of the content is not relevant to the analysis of whether copyright infringement occurred. If the same reasoning is used with streaming content online then a stronger liability claim can be made against any party embedding videos that contain infringing content.
Let’s return to our primary question. Can I embed YouTube videos on my website without running into legal problems? The answer is…maybe. Your best course of action is to focus on providers who create original content that does not contain the intellectual property of other parties. For example, Khan Academy videos. Contact me to learn more.