Copyright Aid

Hi there and thanks for the advice in advance,

I would like to embed YouTube and various other online video streaming sites to a mobile application I am developing. The content may include original clips and home videos, original music performances and/or music covers. Do I need to get permission to embed these videos in my application, and if so from whom?

It is my intent to use the videos for review purposes -positive review and endorsement at that, and to monetize the application in the future. Would I therefore be protected by Fair Usage for Review/Critique laws?

I have tried to decipher from YouTube Terms of Service (sorry I can't post a link because of my newbie status) the answer to my question but cannot be sure, and having tried to make contact on several occassions with no response would appreciate any guidance as to the exposure such usage would create for me.

My intended usage would not be dissimilar to that of Channel 4's RudeTube to draw a comparison.

That's basically the Jist of my query,

Regards, and many thanks,

Seán

Hi Seán,
Under UK law it is not currently infringement to post a hotlink to content on another site. There are those who argue that knowingly linking to a site which which hosts content which is infringing (eg some torrent sites) is an infringing act, as was argued in the case of Richard O'Dwyer and his TVShack site, but so far the UK courts have not found this to be so. The message from other jurisdictions such as Canada, France, Germany and Australia seems to be mixed, which indicates that the law is not settled on the subject. Obviously once your app is in the hands of others and you cannot (I assume) control what they use it to view then clearly you (or more specifically the app you created) is acting as a mere conduit and this is a protected status under EU law. But if you fix or limit the content to specific videos or tracks, and it is found that these are infringing someone else's copyright, then you may have a problem, as with the Richard O'Dwyer case.

As for the actual sites you link to, such as Youtube or Vimeo etc, you do need to get to grips with their terms and conditions, difficult though that may be. In the case of Youtube, their very first condition makes this reasonably clear:

1. Your relationship with YouTube

1.1 Your use of the YouTube website (the "Website") and any YouTube products, channels, software, data feeds and services, including the YouTube embeddable video player (the "YouTube Player") provided to you on or from or through the Website by YouTube (collectively the "Service") is subject to the terms of a legal agreement between you and YouTube. "YouTube" means YouTube LLC, whose principal place of business is at 901 Cherry Avenue, San Bruno, CA 94066, United States.

I have emphasized the key part.

The most relevant terms are to be found in section 5 of their Terms. These include only using their own video player, not modifying their software or service, and not using the service for certain commercial purposes, without prior permission.
On that basis I think it would be very sensible to contact them and any other hosting sites you intend to use, and outline how your app will work and who it will be available to, and let them decide whether this would contravene their normal use conditions. It seems clear that they are happy to collaborate with developers such as you.

Since Youtube and Vimeo have their own relatively robust infringement policies, by using their service, I think you - as the supplier of the app - will be largely indemnified from a Richard O'Dwyer type scenario.
Good luck with your project.

Thank you very much for your prompt reply Andy. It would not be my intention to alter the videos in anyway, shape or form so I think you have cleared that up for me. I will do as you have recommended and contact the relevant host websites before using any content of course, however as I have mentioned, if I continue to encounter brick walls or rather fire walls and spam filters when using the designated Copyright Query form and email address on YT website, if I keep a record of my attempted correspondence would this indemnify (or somewhat protect) me from any actions which YT (or other) may decide to take against me on the grounds that I have made reasonable attempts to clarify the position.

Also (slightly off copyright topic), if in monetizing the application by selling advertising space on the page around the embedded video(s) am I liable to payments to YT, the original uploader/copyright owner of the video or both? The YT ads etc will still play in the application as per normal usage on YT site but as selling advertising space around these videos will be my principle turnover I would need to be aware of my legal position in terms of protecting my own business interests.

This may be something that would be clarified by a response from YT/Vimeo etc, but in failing to get a response I'd be interested to know your opinion, as I have come across many sites that appear to be doing similar things to the project I am undertaking but don't want to fall victim to falsely believing it's ok.

Many thanks again,

Seán

Just to be clear, Sean, if you fail to comply with YouTube's Terms and Conditions this has very little to do with copyright. It is a contractual arrangement - generally known as a click-through licence - and the penalty for not complying with the terms is most likely to be that YouTube will block access from your IP address to their site, although in theory they could try and bring an action for breach of contract.
Anyone who posts a video on YouTube automatically grants YouTube a licence to make the work available to the public, but the effect of the click-through licence on the user is very weak in copyright terms, because the original owner (ie the person who puts the video on YouTube) has not given YoutTube any right to enforce copyright on their behalf. In other words the limitations imposed by YouTube's T&Cs are their own idea (for obvious commercial reasons) and are not a requirement of the original owner. Very few individual owners would want to stop you accessing their content by whatever means, because they obviously put it there to be seen by the widest audience possible. YouTube is acting as an agent of the copyright owner, and not as an owner itself, other than in the technology it owns to run the site, such as the VideoPlayer.
I suggest you don't approach YouTube via their automated copyright query system, but instead go to their Partner program forums and research the issue there.

Thank you again Andy, top advice and response! Hopefully I can negotiate this minefield without any major stalls on the project. Responses gratefully received,

Seán