Q: I created a short film in film school that I’m trying to turn into a full-length feature. I set up a website that allows people to watch the film (I’m sending potential investors there instead of handing out DVDs). A buddy just sent me a YouTube link that shows my film. After some searching, I found that a few different people have posted it. I want my site to be the only place you can go to see the film. Am I out of luck because pretty much anything can get posted on YouTube?
A: There’s a few things in life I’m obsessed with.
Whoops. Let me say that again.
There are a few things in life with which I am obsessed (I must keep up appearances): (1)Tim and Eric Awesome Show Great Job! (my mission is to keep mentioning their show in this blog until they hire me to be their lawyer or obtain a restraining order); (2) Charlie Sheen quotes (at first they were awesome, then every annoying frat guy coworker started over-using them and I no longer wanted to be associated with them, then I got tired of pretending they’re not perfect and bitchin’ so I started using them again); and (3) YouTube.
If you’ve ever read this blog, you have probably realized that I’m a little too quick to link to a YouTube video. For no apparent reason, I’ll often throw in a hyperlink to a Troll 2 clip, even though it has nothing to do with my brilliant legal analysis. I am incapable of having a lunch with friends that doesn’t end in me immediately e-mailing everyone the five YouTube clips I spent the whole lunch trying ineffectually to describe. I get downright giddy over the fact that you can find just about any weird thing you’re looking for on one site.
The fact that you can find just about anything, however, doesn’t mean that you should necessarily be able to do so. Not too long ago, every hipster college kid with a computer was “sharing” music via Napster. Now the RIAA is suing hospitalized teenagers and young teens think Napster’s founder is kinda cute in a Mickey Mouse Club / boy band sort of way.
Just like copying and distributing music via Napster violated copyright laws, so does the copying and distributing of someone else’s videos via YouTube. Why then can you still find almost anything? First, many content owners welcome anything that gets their content out there. For all we know, the owners of Troll 2 love the fact that clips from their film are getting millions of views. You’ve got to imagine that some percentage of those millions want to see the whole thing in all of its glory (you’re crazy if you don’t). Second, content owners are increasingly sponsoring their own channels and, thus, monetizing views by including annoying advertisements (because Adult Swim created their own YouTube channel, I can now watch Sit On You over and over and over and over and over without any guilt). Third, a majority of the content on YouTube is posted by yahoos like you or me who created their own video and uploaded it, giving YouTube a license to distribute it.
What about all those TV and movie clips the studios and networks and short film creators do not want on YouTube? As noted, the posting of those clips infringes upon the applicable content owners’ copyrights. If YouTube is giving copyright infringers a means to infringe copyrights (which could give rise to claims for contributory copyright infringement), why hasn’t YouTube gone the way of Napster? The answer lies in a statute the Village People would love to sing about: the DMCA (Digital Millennium Copyright Act).
One of the primary accomplishments of the DMCA was the creation of a safe harbor for certain internet sites from liability for the infringing acts of their users. While it’s a fairly complex act which is relatively new (meaning not all the kinks have been worked out in case law), the safe harbor can be overly simplified as follows: a website is shielded from liability for the infringing acts of its users if: (1) it acts like a public bulletin board, allowing users to post content with little to no gate keeping at the outset (as opposed to a site that picks and chooses the user uploaded content it will display) and (2) it promptly takes down infringing content when notified.
Judging by what you can find on YouTube, you can rest assured that it is performing no gate-keeping function. If it isn’t overtly sexual, it’s going up. Therefore, all it needs to do to avoid liability is to adhere to a takedown procedure. What this means for you is that after all this useless gibberish, I’m finally getting to a point that can help you: if you want your short taken off of YouTube, you simply need to follow YouTube’s takedown procedure (which mirrors the requirements proscribed by the DMCA). You can find it in Paragraph 8A of their standard terms. Please say hi to Shadie Farazian for me (I’m pretty sure Shadie looks like this).