There is little doubt that avoiding copyright infringement can be a complicated matter. Questions of fair use, copyrightability and derivative works are already enough to make even a lawyer’s head spin.
However, with the read/write Web comes a whole new set of challenges. As we begin to share one another’s content like never before, it is not enough to ensure that we don’t upload content that might be infringing, but we have to make sure that we don’t use infringing works posted by someone else.
Those questions come to a head when we look at YouTube. With its library of millions of video clips and simple embedding tools, it is easier than ever to display video on your site or blog, including videos that might be infringing.
This raises the question about whether or not a site that posts an embedded clip could be held liable for it, especially if they were unaware of the infringement.
The answer, however, is frightening and should give YouTube fans reason to pause and think before they embed their next clip.
A Frightening Possibility
According to intellectual property attorney Denise Howell, the author of Lawgarithms and the host of This Week in Law, the problem with embedding infringing YouTube clips is fairly straightforward.
“Any time you incorporate a copyrighted work into a site without the rightsholders’ consent, you’re potentially liable,” said Howell, “It doesn’t matter where it’s hosted.”
In short, since your site or blog is gaining benefit from another’s copyrighted material without permission, you can be held liable for it. It does not matter if the content is hosted elsewhere, posted by someone else.
Worse still, according to Howell, it does not matter if the person doing the embedding was aware of the infringement.”Innocent or ignorant infringement is just as actionable as the intentional variety,” said Howell. The only difference is the amount the plaintiff would be able to win in statutory damages should the case go to court. However, even in cases of innocent infringement, that amount can be as high as $30,000 per work infringed.
When it is all said and done, according to Howell, there is nothing to stop a rights holder, especially a well-funded one, from targeting sites that embed YouTube videos. If a rights holder believes that the site owner might be wealthy enough to pay or be motivated to settle, it is within their rights and their power to go after them.
A More Peaceful Reality
Of course, the odds of a rightsholder actually taking such action is very slim. As Howell points out, YouTube has a very well-established DMCA policy that can get works removed from both YouTube and all sites it was embedded in with a simple notice.
Second, very few Webmasters have deep enough pockets to warrant filing suit against. Considering that RIAA lawsuits, which usually involve hundreds of allegedly infringed works, only settle for a few thousand dollars, it would not be financially viable for a rights holder to sue a small Webmaster over a few videos, especially if the infringement is potentially innocent.
Finally, any such move would be a public relations nightmare. The same as the RIAA has been raked over the coals for its legal tactics, so would any rightsholder who sued a Web site for merely embedding a YouTube clip, especially when far less extreme options were available.
All in all, though the dangers of embedding an infringing YouTube clip are high, the actual odds that a worst-case scenario will come to pass are very low. The most likely thing to happen is that, after a few days, the clip will stop to work as the rightsholder files a DMCA notice and YouTube pulls the work.
It might be frustrating, but it is certainly preferable to a lawsuit.
Even though the odds of actually being sued or threatened with a suit for embedding a YouTube clip are slim, it is still worthwhile to take a few simple precautions to make certain you don’t have problems down the road:
- Don’t Embed Clearly Infringing Material: Lengthy clips of popular television shows and movies, meaning the length goes beyond what might be considered fair use, should not be embedded. It would be very hard to deny that you knew the work was copyrighted and they are types of content being most aggressively pursued right now.
- Embed from Official Channels: Many major rightsholders, including CBS, have official YouTube channels that allow embedding. Embedding videos from only these channels is a great way to avoid any potential copyright issues later.
- Stick to Popular Amateur Clips: Since the majority of the most popular clips on YouTube are amateur-made, it is probably best to stick to those. Small rights holders, if infringed, have less incentive to sue. Also, by sticking to popular clips, you can reduce the likelihood that the rights holder will “discover” the infringement and take action. In most of these cases, the rightsholder is the one who posted the clip to begin with.
- Say Something About It: Generally, transformative use is much more highly protected than non-transformative use. Rather than simply posting the clip, say something about it. Offer some commentary or criticism regarding the clip or discuss an issue that relates to it. This might not make an infringing use non-infringing, but it could bolster a fair use argument if the clip is borderline.
- When in Doubt, Link Don’t Embed: Though linking is not a guaranteed way to avoid being sued for copyright infringement, it is definitely preferable to embedding. If you are unsure about a video clip, consider linking to it rather than emedding it directly.
Though most of these steps are merely common sense, they are still well worth following. If nothing else, having an element of your site stop working can be very frustrating.
All in all, there is very little reason to fear being sued for embedding YouTube clips into your site. Even if the clip is obviously infringing, the most likely outcome is simply that it will stop working after the rightsholder files their DMCA notice. The odds of such a matter leading to a courtroom are very slim.
Still, given what is at stake, it makes sense to take a few steps to reduce the risk as much as possible. A lawsuit, any lawsuit, can be potentially devastating to an everyday citizen and if a few reasonable precautions can help prevent future troubles, it is well worth taking the time to follow them.
The problem is that, though most rightsholders are at least somewhat reasonable with their policies, there are a handful who are not. There is no way to tell when a rightsholder may “jump the track” and take extreme action where it is not warranted.
Copyright history, especially modern copyright history, is dotted with cases like that and it is best to not be on the wrong end of such a suit if it is at all avoidable.