Is Watching An Infringing YouTube Video Copyright Infringement?

from the these-days,-what-isn't-infringement? dept

Fri, May 16th 2008 10:52am — Mike Masnick

Last year we pointed to a report where a law professor tallied up how much he "infringed" on copyright in a regular day, coming out with a multi-million dollar total. Now Tom writes in to alert us to an article by Chris Soghoian questioning whether or not watching an infringing video on YouTube counts as infringement as well. The summary is that it's hardly a clearcut issue -- which should be seen as a problem. A copyright holder could conceivably make an argument that it's infringement, though it's not clear that it would hold up in court (and the backlash against anyone stupid enough to make such an argument would be overwhelming). What this really highlights, though, is how poorly our copyright laws are structured for the internet age, where anyone can create, distribute and consume tons and tons of content (all covered by copyright, thanks to Congress granting automatic copyrights).

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Filed Under: copyright, infringement, videos, youtube
Companies: youtube

24 Comments

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Anonymous Coward, 16 May 2008 @ 10:56am

If farts could enjoy IP protection
Could I sue you for stealing from my ass if you smelled them without a license?
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eleete, 16 May 2008 @ 11:21am

Why Not?
Seems to me that our government enjoys these little spats, so it just remains silent. Ever try asking an attorney what you can and cannot do with some piece of media ? They look all frightened and answer.... hmmmmm well this could happen or that could happen... so I wouldn't. They don't recognize fair use and there are no tests to say definitively what is and is not permissible. It's a horror show, unless your on the receiving end of the checks. But as we were shown, when those same people have to cut the check, they're not running to the accounting or press release department. I truly believe that the courts make a lot of money off of all these frivolous battles and that they don't listen to what their voters want, they clearly only listen to the lobbyists. More of the same corporate greed.

eleete
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Melvillain, 16 May 2008 @ 11:40am

What I find interesting is the fact that watching a Youtube video should be considered any different than downloading an MP3 file. You are still receiving the content, whether or not it ends up on your computer. So technically it would be infringement. You could argue that the watcher was unaware of the copyright, but someone downloading music could make the same argument but would lose. The RIAA is trying to argue in court that even making a file available on a P2P network should be considered an infringement. If the courts rule in their favor then watching a Youtube video that is infringing would fall under the same category. In other words, if you are infringing just by making available content then partaking would seem to fall under the same ruling. Why the double standard? This issue just points out the huge inconsistencies in IP law.
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Jake Buck, 16 May 2008 @ 11:52am

Re:
The AA's have only been targeting distributors of media online , not people who only download. There is more ways than just using bittorrent to get your files, and quite a few of them don't let the AA's look at what you're infringing. Watching a YouTube video is not making the video available for others. I'm not arguing that its not infringement, but that watching a YouTube video is much different than distributing it across a p2p network, and you should not lump them together.
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Anonymous Coward, 16 May 2008 @ 11:54am

Re:
In fact, if you just emailed the youtube LINK to your friends, you'd be "making infringing content available" and be liable.

And don't even THINK about posting the link on your website site so potentially BILLIONS of people could access it.
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comboman, 16 May 2008 @ 12:02pm

Re:
As I understand it (IANAL), downloading an infringing MP3 is not illegal; it is the distribution of infringing files that is illegal (i.e. uploading or "making available"). Leaches are safe, it's the one who share that are in trouble (though most file sharing systems force you to share, at the very least, the file you are download for as long as you download it).
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Greg, 16 May 2008 @ 12:34pm

Well, you're making a copy of the file, even if only into memory on your computer, and you're also downloading the content, but again, only into memory, temporarily.

It's technically infringement, but wow that's a stretch.
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Ima Fish, 16 May 2008 @ 12:38pm

"and the backlash against anyone stupid enough to make such an argument would be overwhelming"

That hasn't stopped the RIAA.
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Paul, 16 May 2008 @ 1:04pm

Re:
Let's say I'm walking down the street, and some guy is playing a popular song on his guitar. I stop to listen. Does that mean I've infringed? How is that situation different from viewing the YouTube video?
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JB, 16 May 2008 @ 1:04pm

Aural Equivalent?
If you download a song via BitTorrent and play it loudly on your stereo, then anyone who can hear it is infringing the copyright.

Am I correct that this is the same logic?
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Anonymous Coward, 16 May 2008 @ 1:10pm

Uh - oh
Am I infringing a copyright every time I remember a song or movie without paying a remembering fee ?
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Mike (profile), 16 May 2008 @ 1:17pm

Re: Re:
As I understand it (IANAL), downloading an infringing MP3 is not illegal; it is the distribution of infringing files that is illegal (i.e. uploading or "making available"). Leaches are safe, it's the one who share that are in trouble (though most file sharing systems force you to share, at the very least, the file you are download for as long as you download it).

That's not necessarily true. Downloading could certainly be a violation of the "reproduction" right of copyright. There are some legal rulings in some countries (NOT in the US, however) that have suggested that if it's for non-commercial, personal use, then it's okay -- but US law does not agree.

The reason you might think it's not infringement is because the RIAA has chosen not to go after folks for downloading -- mainly because it's much tougher to find and to prove.
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Dick Clark, 16 May 2008 @ 2:00pm

Re: Re:
No it is not. Because the radio station is paying royalties to be playing that music to anyone who listens
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Anonymous Coward, 16 May 2008 @ 4:04pm

so you go to the library and read a (c)copyrighted book. Since the book is not yours, Is or is it not copyright infringement ? or how about the newspaper or magazine sitting in the resturant or doctors office, or the movie that's playing for the kids in the doctors office, and on and on and on.

sick isn't it ?
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Anonymous Coward, 16 May 2008 @ 8:49pm

Guess I won't embed any more YouTube videos on my blog then. Fuck the RIAA. Their acts won't get any free promotion from my site.

The big content industry are idiots. Free distribution and viral marketing rock, and those dinosaurs will go extinct.
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Melvillain, 16 May 2008 @ 11:27pm

Re: Re:@4
"The AA's have only been targeting distributors of media online, not people who only download."

This isn't my understanding, but maybe I'm wrong. I can't imagine that all those letters going to colleges are to people "making available" content.

"Watching a YouTube video is not making the video available for others. I'm not arguing that its not infringement, but that watching a YouTube video is much different than distributing it across a p2p network, and you should not lump them together."

Maybe I didn't explain myself well enough. I'm pointing out that the RIAA is trying to prove in court that even if someone does not download a file from you, just having that file in a shared folder constitutes infringement. I am drawing attention to the absurdity of a claim that even when no infringement has taken place the RIAA is trying to argue intent. If the passive act of making something available (by mistake perhaps) can be considered infringing then obviously actually partaking in an infringing piece, such as a Youtube video, would also be considered infringement. Where do you draw the line? Will the RIAA then be able to argue that you did not take reasonable measures to insure that a hacker wouldn't break into your computer and use it as a distribution center? I'm just saying it is a slippery slope when you start putting up walls around intellectual property.
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Nate, 17 May 2008 @ 6:17pm

The whole system is FUBAR'd and needs to be rebuilt from the ground up. But, unfortunately, that will never happen. http://www.custompcmax.com
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Joy, 29 May 2008 @ 10:25am

If there is such a issue over this and tons of people getting into trouble than shut the damn sites down! Shut the internet down for pity sake. It's not worth having if people get in trouble for all this. If anyone should be sued it should be youtube, because they allow these damn videos to be uploaded.
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Curious, 14 Jun 2008 @ 1:18pm

Re: Re: Re:
Does that rule apply as well to website content, graphic or written? Under that interpretation, by simply surfing the web, anyone who downloads copyrighted content to their cache by simply surfing around is a violator? I don't think so.
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Jerry, 8 Jul 2008 @ 12:38pm

Copyright Infringement
Copyrighted works should be removed from Youtube if requested by the owner. But how is a Youtube user to know if he/she is partaking in copyright infringement? Works before 1964 may be in the public domain if not renewed under the old 1909 law. An old commercial or newsreel, for example, could be PD material. How can we be sure? Also, anything before 1923 should be PD. If I'm watching a very old, undated film clip, how can I be sure I'm not infringing? And it may be that the rightful owner has posted and so no infringement is possible. I can't be expected to do a copyright search before I watch something on Youtube, that's ridiculous.
Maybe Youtube needs to add an 'info' box for posted clips that pertains to copyright information. This information would be required before posting the video and would force the poster to acknowledge and declare their copyrights. If the poster owns the material then no problem. But if they dare to claim copyright ownership for material not theirs then they can't claim ignorance of the law. This info box would be next to the video window for all to see. Either the poster has a legal right to post or they don't. If they DO then there should be no complaint about proclaiming ones legal right to post. If they don't, then they best not post material that doesn't belong to them. If the posted video is done with permission, then 'POSTED WITH PERMISSION' would settle the matter. And anyone that creates a video has copyrights from the moment of inception, whether they contact the Copyright office or not. And, finally, if it's public domain material (and your darn sure it is!) then posting "PUBLIC DOMAIN" with the video would be a declaration by the poster that could be accepted by viewers in good faith.

Also, I think there needs to be new laws that define more clearly "fair use" and what constitutes "commentary" and "criticism," and by whom. Should it be legal for your average joe to post the best 3 minutes of a blockbuster with the pretense that it is fair use 'commentary.'? And what constitutes a 'sizable' portion of a movie? Is a one minute plot-breaker more 'sizable' than 3 minutes of cryptic dialogue? Anyway, I think I've rambled enough. Anyone agree? Disagree? Fraud1958
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Grant Cobb, 7 Aug 2008 @ 5:37am

I do not appreciate that last part of the last line of your article. Some of us do not generate tons and tons of content, and what we do generate tends to be of much higher quality. And that automatic copyright happens to be a lifesaver to every creator of intellectual property. In this age where your content can be stolen before you get the chance to print it, we need that kind of protection.
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Anonymous Coward, 26 Oct 2008 @ 11:27pm

....
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none, 9 Nov 2008 @ 1:54pm

re:If farts could enjoy IP protection
how the hell are you gonna prove that in court?
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getosama, 26 Apr 2009 @ 11:08pm

copyright
if a baseball player gives the finger to another player on tv and it's broadcast twice, can i youtube it as newsworthy etc? does obscenity also have copyright protection?
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