Knowing me, knowing YouTube

IF it’s not possible to post a YouTube video on a blog or other site without the sure and certain knowledge that you’re not breaking the law, then we’re all in trouble.

The recent debate sparked on this site by an intervention by one “wibbler” late last night  is very relevant for those of us with a vested interest in the future of blogging. At the moment, this site can only use YouTube video, and I am currently unable to embed any other form of video (this will change with And another thing… Version 4.0, due along soon).

If I can’t legally post something as inoccuous as Christmas music videos, then that really is incredibly – and unnecessarily – restrictive. “Wibble” insists it is illegal, while another commenter, Mike Rouse, claims the onus is on the person who uploaded the video to YouTube in the first place to make sure that all copyright permissions have been obtained. I certainly haven’t seen any disclaimer on YouTube that watching or posting any of its videos might incur legal action. 

And anyway, is posting a YouTube video on a third party site technically distribution at all? YouTube videos can’t be stored, only watched online. So when I “embed” one, all it is is a link to the original video over at YouTube. Hardly the same as a file-sharing programme like Kazaa which allows MP3 and other file formats to be actually copied from one computer to another across a network.

I understand what people are saying about MPs’ responsibilty for reviewing the law on copyright, and I accept that as a blogging MP, I’m an obvious target for criticism in this respect. Yet changes in copyright laws are not going to happen quickly, and even if copyright extended for only 25 years instead of 70 or 50 years, it wouldn’t remove the immediate problem we have with most videos on YouTube (and certainly wouldn’t affect the current legal status of  Ms Carey’s “All I Want For Christmas Is You”).

(And yes, Labour Matters, my immediate response to legal action is to try to cover myself by removing the offendig video – sorry if that disappoints you, but I have no interest in becoming bankrupt or , indeed, of breaking the law once made aware of a possible infringement.)

Are there any lawyers out there who would care to offer some free advice, not just to me but to everyone else interested in this area?

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20 Comments

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20 responses to “Knowing me, knowing YouTube

  1. Andrew F

    Where have you been for the last three years? Copyright and youtube is a huge can of worms.

    You must have heard about the huge Viacom vs youtube thing? Basically, they’re demanding that Google turn over a the logs of every video watched on every single I.P. address worldwide – so that they can assess who owes them money just for watching stuff for free.

    It’s a massive civil liberties issue (not that it will bother you).

    Admittedly, most people ignore the laws: you can view pretty much any music video you want on there. But it’s definitely an infringement.

  2. This appears to be an untested area, even in US law, although C&D orders are reportedly quite common. You may find this summary of the issues and this advice helpful.

  3. //(And yes, Labour Matters, my immediate response to legal action is to try to cover myself by removing the offendig video – sorry if that disappoints you, but I have no interest in becoming bankrupt or , indeed, of breaking the law once made aware of a possible infringement.)//

    It’s not particularly the removal of the video which disappoints, but fact that an MP would post it in the first place without thinking about whether it might infringe copyright. To be more precise it’s posting it (and others), then the implication that removal makes it OK.

    Clearly you did not believe that what you were doing was wrong (and you’re right to say that “if it’s not possible to post a YouTube video on a blog or other site without the sure and certain knowledge that you’re not breaking the law, then we’re all in trouble.”) You’re thinking about it now at least, which is a good thing, and the point of my previous comment.

    Irrespective of the law, lawmakers above all others need to stand up for what is right. You are after all only doing what millions of others are doing, and if you watch the Lessig lecture to the end you’ll see why he concludes that this must change. He’s no anachist, as you will soon note.

    You’re in a privileged position to affect change, but you’re also one of millions who are also affecting change by stealth by (perhaps) breaking the law. Nobody should seriously want to see you criminalised for such innocent behaviour and certainly not bankrupted, yet increasingly that is what is happening (which is why “wibbler” was so outraged about in the first place).

    Please watch Lessig and seriously consider whether you and fellow Labour MPs should be thinking more carefully about these issues. Perhaps you could start by not extending copyright to 70 years?

  4. John Smith

    You can store YouTube videos – there are plenty of Firefox extensions out there that allow you to pull a Flash video off a site. They’ll download as a *.flv video, which is easily enough converted into an MP4 or equivalent.

  5. Matt

    Tom,

    This is an area where the law lags far behind technical development and the cultural changes it has brought with it.

    I agree with LabourMatters that there seems very little point in extending a copyright system that is being routinely infringed – so much so that many people think nothing of it anymore. A lot of thought needs to go into reconsidering copyright law as a whole to balance the needs and rights of artists with the expectations and fair use of consumers. I do not believe there is an easy solution.

    In this instance it is YouTube and the original uploader who are infringing copyright and may be liable to the owners taking recourse. In practice they will simply ask YouTube to remove the video, as tracking down and prosecuting the uploader (wherever in the world they may be) is too onerous to be worthwhile. The Viacom lawsuit may change how YouTube polices content in the future, but at the moment the only legal consequences (if not implications) are likely to remain at a corporate level. They are not going to take action against people who watch or link to the video.

    The issue of linking to copyrighted or illegal material on other sites is an area where the law appears not to have been tested. When the BNP membership list was leaked last month, few websites were prepared to risk the consequences of offering a copy for download, but the majority of websites covering the story also chose not to link directly to the well-known leaks website where the data could be found. They policed themselves in this instance, but questions remain. Is linking directly to the data (but not hosting it) an infringement? Is linking to the homepage of the leak site an infringement? Is saying the name of the leak site but not linking to it an infringement? I would like the answer to all of these to be no – responsibility should lie with the hoster, the person offering the material – but until a prescedent is set it is a grey area.

    If you’re still concerned about your case, take some heart in the knowledge that any attempt to take legal action against you would almost certainly invoke the Streisand effect and the public/internet response would quickly force the owners to back down.
    http://en.wikipedia.org/wiki/Streisand_effect

  6. “any lawyers out there who would care to offer some free advice”

    sounds like a triumph for hope over experience…

  7. Johnny Norfolk

    I think you need to lobby your MP about this. He/she should be able to investigate who you can contact to find out the detail about this. If you speak to him/her nicely about it he/she may do it for you.

    Thats what MPs are for you know.

  8. No it’s not, Johnny. MPs can’t give legal advice unless they’re also practicing as a lawyer. Neither are MPs and their offices research facilities on any and every subject. Thought you would have known that, Johnny.

  9. Steve

    “Hardly the same as a file-sharing programme like Kazaa which allows MP3 and other file formats to be actually copied from one computer to another across a network.”

    Wrong, every youtube clip is downloaded onto your computer while its being viewed, and when you go to another page it remains. In posting a link you have performed exactly the same task that kazaa does.

    If anyones interested, I was reading a book that covers the history of copyright, and whats gone wrong with the current laws, its a free download (cc license) , well worth a read.

    http://www.thepublicdomain.org/download/

  10. John

    “And anyway, is posting a YouTube video on a third party site technically distribution at all?”

    Yes. There are may people who thought not, including a very well known (yet now defunct) UK website who thought they could simply provide hundreds of links to full episodes of TV shows hosted at places like YouTube and similar, and totally escape punishment because they weren’t hosting the content themselves. They were wrong, they were arrested, and their website has been shut down.

    The argument for this goes something like this. Are you guilty of an offense if you stand on a street corner, and when people ask you where they can buy drugs, you then point them in the direction of a house up the road? After all, you aren’t handling or selling drugs yourself, you are just pointing people in the direction of the person that sells them. The answer is, you are absolutely guilty of an offense, and it’s that same argument that’s used with streaming content. The clip you posted was copyrighted and unauthorised, and you pointed others in it’s direction.

    Knowledge is irrelevant btw. These kinds of things are strict liability offenses, so simply doing is enough. If you are already bored then stop reading now. If however you want to read a comical and high profile example of how stupid strict liability offenses are, then do read on.

    There was a drunk uninjured man who fell asleep in a hospital waiting room and refused to leave. The police were called and promptly ejected him off the hospital grounds entirely onto the pavement by a public highway. He was then arrested for being drunk on a public highway, taken to the police station and charged. His lawyers of course took the matter further, yet as this was a strict liability offense the court found in favour of the police. It was irrelevant that the police had taken him to the public highway, simply being there was enough.

  11. Tom,

    For the last few weeks you’ve been posting videos from YouTube… yet it is only the Mariah Carey video that has caused you any grief. Is the “Wibbler” an associate of Ms Carey? Or indeed, Ms Carey under a pseudonym? We should be told!

    Also… I have no idea about copyright law… but I’d agree with you in what you are doing is not distributing the thing, merely directing people to where they can view it. Which is, I guess, a murky area also (because, I guess, it is like Steve says above, essentially the same thing that Kazaa does).

    And despite thinking what you write has become somewhat partisan since your, ahem, demotion to the back benches, it’d be sad to lose Scotland’s top blogger to a copyright scandal.

  12. I put a clip of usain bolt with his 3 olympic wins captured from the BBC – took over 3 hours to put together and upload and NBC had Youtube take it down in less than a minute.

    Channel 4 have contacted me about my BB9 clip and have allowed it to stay up, but they may put adverts on it.

    Nobody seems to be bothered about all my Labour party clips – too busy laughing maybe?

  13. Since we are all pretending to be jail house lawyers, here’s my two pennorth..

    Judges are increasingly favourable to the public domain defense. A lot of high profile cases have been dismissed with the obvious fact that this sort of thing is in the public domain – it cannot be put back in its protective box. Corporations that chase bedroom bloggers for using their stuff increasingly give up. This is in the more serious arena of DRM, which is now being abandoned as unworkable.

    Nobody is going to prosecute Tom for linking to a third party site that shows crap quality promotional videos and comedy spoofs. Have the makers of “Downfall” done it? No, of course not, they have better things to do.

    Let’s try not to get carried away by tatterdemalions like the wibbler who just want to feel important for five minutes.

  14. //“And anyway, is posting a YouTube video on a third party site technically distribution at all?”

    Yes. There are may people who thought not, including a very well known (yet now defunct) UK website who thought they could simply provide hundreds of links to full episodes of TV shows hosted at places like YouTube and similar, and totally escape punishment because they weren’t hosting the content themselves. They were wrong, they were arrested, and their website has been shut down.//

    Thanks for the reminder John. I could remember US sites falling foul but for the life of me couldn’t remember a UK one. I assume you were referring to TV links, which was I think a UK action?

    And thanks to Steve for the book link too. My original comment contains a link to Lessig’s book, in case you’ve not clicked it.

    See what you’ve stirred up now Tom? ;-)*

    And it’s not a generational thing either – Lessig must be about our ages (I’m 2 years younger than you, I think), but the so-called iPod generation is facing this stuff everyday and concludes that the State is out to get them, and the law is an ass. (Many already assume this to be true over drug laws by the way, but that’s another story.)

    If every MP were a blogger they too would encounter what you’ve just encountered and we might see some decent thinking on such issues. As it is, none of my comments were personal to you, but I do hope you’re now researching this more deeply.

    * Did you see that this emoticon has been patented, by the way?
    See: http://www.huffingtonpost.com/2008/12/11/oleg-teterin-russian-entr_n_150438.html

  15. John

    “Since we are all pretending to be jail house lawyers”

    I’m not pretending much. I’ve recently completed all my legal training. All i’m lacking is a 2 year training contract where I have to work under supervision before I am officially added to the roll of practicing solicitors.

    I’m searching for a training contract right now btw. It’s proving very difficult 😦

  16. I’d just make a timely note, since this is about copyright, and you, an MP in the governing party clearly didn’t realise your party are fine and dandy with the laws that you’ve just broken, about the activities of one Andy Burnham…
    He’s the Culture Minister who thinks he knows better than the rest of us, because he wants to extend copyright from 50 years to 70. Despite all the evidence showing 50 is MORE than sufficient. Despite a Government report (the Gowers Report) saying it should stay at 50, and despite widespread dismay from freedom and IP activists…
    Why? Apparently it’s a moral issue. Apparently a recording made in 1958 should still bring in the singers descendants money some 70 years later, even though they’ll likely be dead…

    Copyright should be about the social contract…the State gives the artist a monopoly on their recordings for a fixed-time frame, and in return when time’s up, it enters the public domain, thus benefiting all humanity. Not just the ft bloated record companies that have obviously being using all their hard-earned cash to bribe, sorry, lobby the Culture Minister.

    Even you Tom think it’s draconian you can’t post a link to a video. Yet your party want to extend royalties to 70 years!! What other work can I do and still expect a paycheck 70 years on? Not even MP’s get that!!
    Cliff has onough money. Have a word with yo mate Andy and tell him to back off on this one. Public-domain-ing of recordings is not only fair, it’s right. No one should get a monopoly for life on something. 50 years i more than generous. Should be 25. But no way should it be 70!!

  17. wibbler

    In no particular order:

    1. My initial ranting was catalyzed by stress and drink (a very bad combination); please ignore it completely – although the ensuing discussion is quite interesting.

    2. I am not a lawyer; anything I say is based on personal research done when a friend of mine was harassed by his ISP for what I consider similar matters.

    3. This particular instance is a storm in a teacup; the general issues it raises are extremely important.

    4. I have no standing to bring “legal action” against Tom Harris. In turn, Tom Harris has no standing to do anything about the original uploader. Only Sony BMG (or possibly their representatives like the BPI or the American equivalent, the RIAA) do. See point 1 for why I foolishly suggested otherwise.

    5. I have not reported this to the BPI and will not; see point 1 for why I foolishly said I would. If I did, I would no doubt be laughed away.

    6. The chance of any legal action being taken (in my layman’s view) is zero. What Mr Harris did was something millions do every day without a moment’s hesitation – and rightly so! Actually, it scares me a little to think my angry comment, in which I invested zero thought and less than a minutes typing, was interpreted as “legal action”…

    6. By definition, anytime you view a document on your computer (even if it is streamed from elsewhere) your computer must make a copy of it simply to be able to show it to you. Copyright law is therefore relevant.

    7. Whether this copy is easily ‘re-transferable’ varies (trivial with MP3s; pretty easy after a search for desktop FLV software for Youtube files; progressively harder/more risky with bleeding-edge watermarking/DRM). Nevertheless, it is always possible with sufficient effort.

    8. Linking is not the same as embedding – there is a tentative natural hierarchy of culpability: linking is less bad than embedding (“passive” distributing) which is less bad than “active distributing” (like illegal P2P) which is (sometimes) less bad than making an initial bootleg copy.

    9. The law on “enabling infringement” around the world seems very badly defined to me. In Grokster vs MGM (US Supreme Court) Grokster was found liable even though it had not committed infringment itself, because it was held to be designed in such a way as to deliberately facilitate infringement.

    10. To the best of my knowledge, the “linking” cases are the closest UK equivalents to Grokster.

    11. No-one can possibly argue that Tom Harris is systematically inducing infringement.

    12. Having read the Copyright, Designs and Patents Act slightly more, as the infringement (if any) was unknowing, Tom Harris is possibly OK under section 97 (1) – under the ‘Mike Rouse’ defence of “well, the original uploader said it was fine at the point of upload, so any fault is his”.
    http://www.opsi.gov.uk/acts/acts1988/ukpga_19880048_en_5#pt1-ch6-pb1-l1g97

    13. However, that clause can also be read as applying when unaware that Mariah Carey’s works are under copyright – a more difficult case to make!

    14. Sections 22 to 26 seem to be anti-Harris though.
    http://www.opsi.gov.uk/acts/acts1988/ukpga_19880048_en_2#pt1-ch2-pb2

    15. The fair dealing provisions (sections 29-30) are very vague – for comparison, libraries generally advise fair dealings for noncommercial or academic use as up to 10% or 1 chapter of a book you want to photocopy.
    http://www.opsi.gov.uk/acts/acts1988/ukpga_19880048_en_3#pt1-ch3-pb2

    16. Caveat emptor: the above comments could well be out of date; a rather forbidding 334 page document explaining updates as of 2007 is available at http://www.ipo.gov.uk/cdpact1988.pdf
    Nevertheless, it is obvious to anyone who follows copyright issues that there is a huge chasm between technology and the law.

    17. Copyright infringement is a civil, not criminal offence (in this country), as far as I know – despite the obnoxious ads which preface every film.

    18. Copyright infringement is not theft.

    19. The Viacom lawsuit proves that the (American) law is, at best, unclear, about whether viewing/linking/embedding/etc is infringement – in technical, if not practical, legal terms. My thanks to Scottish Unionist for providing those interesting (though, it seems to me, conflicting!) links.

    20. The abuses committed in the name of stopping copyright infringement are appalling – and this government has been very complicit.

    21. Record labels are increasingly (entirely?) irrelevant; yet they seem to have convinced politicians around the world to try to prop up their failing business models criminalizing behaviour which no sane person regards as wrong.

    22. Record labels and their cartels (the BPI, but even more so, the RIAA) have been granted police-level powers of investigation, without any accountability.

    23. The cartels have also been effectively been granted carte blanche powers of prosecution – if/when they sue, if you don’t settle they will bankrupt you even if you have done nothing wrong. This is not just.

    24. They have employed extremely shady and probably illegal investigative methods – cf the furore about the unlicensed contractor, MediaSentry, in the United States. No doubt similar methods are used here.

    25. It is a dirty not-so-secret that almost every schoolkid with an MP3 player has hundreds or thousands of tracks on it – not many of which are likely to be paid for! If 90% of kids in this country are deemed to be criminals then something is wrong with the law.

    26. That Lessig lecture was amazing. I hadn’t heard the distinction between the need for fair use and free use articulated so clearly before. And there were a surprising number of British political figures making cameos… And there were practical solutions offered! Thanks to labourmatters.

    27. Malc, I hate that Mariah Carey song with a vengeance, but I’m pretty sure that this didn’t even have a subconscious impact. I am not (was not?) a regular here; just followed a link. See comment 1 for an explanation for my tone.

    28. Some political disclosure: I would probably have voted for Labour if I had a vote a few years ago. Since Iraq, I am decidedly floating. However, it must surely be a concern to Labour that students (historically a bankable demographic) have been so turned off by recent policy. My heart wants to be with Labour, but there is little rational reason to back that up at the moment.

    29. As unemployment rises and more people sit at home, internet issues will become more important even for those over the age of 30. After all, if there is no bread then the circus will reign supreme! Politicians who are the “friend of the internet” can build up a lot of goodwill. Examples: my.barackobama.com or change.gov.

    30. I have never had any previous interaction with Tom Harris; I don’t know anything about him frankly. All I absorbed before I saw red was ‘Labour MP’. There was no particular reason why my blood boiled here as opposed to elsewhere. I am genuinely sorry that he now has to think of these issues every time he blogs just because he is in the public eye – when everyone else in the country would just press on regardless, and rightly so.

    31. It was not my intention to spark a debate about internet and copyright policy; see point 1 – there was no intention whatsoever, other than an ill-conceived notion of catharsis. Nevertheless, I am genuinely angry about the way copyright issues (and other things under the unfortunate umbrella of “intellectual property”) are dealt with. As a simple example – why is it that whenever laws are “harmonized” between countries or trading blocs that the more draconian existing policy is always the one which wins? Anyway, I am glad to see such a consensus of opinion here on an issue dear to my heart.

    32. I am amazed at the range of insults thrown my way. Tosser is of course well-known to me, though piss ant and tatterdemalion are entirely new. Are these common in Scotland? All I can say is, I apologized for my tone (twice), and have tried to be constructive since. If people still feel it necessary to enlarge my vocabulary in this way, then please go ahead – but on the hierarchy of stupid things done by young people, this is pretty low down the scale…

    33. I will not make any further comments on this matter because, although this is a welcome and engaging distraction, I am snowed under with work (and hopefully, soon, with snow!)

  18. Thank you (again), wibbler. I wasn’t aware I had allowed someone to insult you in such a derogative way – sorry about that. Ease up on the language people.

    No problem with continuing this debate, but let’s just leave wibbler alone now, shall we?

  19. “Tatterdemalion”. Sorry about that, Wibbler. But you are a Cad and a Bounder. Here is my card and I am happy to meet you at Mesopotamia, at dawn, with my seconds, in order to resolve this in the fashion of Gentlemen. I will provide you with the best pair of English dueling pistols available to give you a sporting chance.

    Should you decline, your reputation will be in tatters.

  20. There’s a very good opinion piece on plans to extend copyright in the FT today: http://www.ft.com/cms/s/0/ba280756-ca07-11dd-93e5-000077b07658.html

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