Observations and arguments.

Questioning the YouTube ToS panic

On the Wired blog yesterday there appeared a post with the alarmist headline “YouTube’s ‘New’ Terms Still Fleece Musicians”. It highlights the newest YouTube terms of service, which read, in part:

…by submitting the User Submissions to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube’s (and its successor’s) business… in any media formats and through any media channels.

The writer (Eliot Van Buskirk) points out, quite rightly, that YouTube could take your video (or, for example, a band’s song that appears in a video) and sell it on a DVD or CD, or broadcast it on a television show, or sell it to an ad agency, without paying you a nickel. The license is transferable, meaning they could pass it along to another entity (e.g. a television production company), and it would be retained by any entity that bought up YouTube.

The story was picked up by BoingBoing, which has a lot more readers than the Wired music blog, so there are going to be a lot more people across the internets reacting negatively to what appears to me a misreading and mischaracterization of the terms of service text.

Van Buskirk chooses to overlook two sections of this paragraph in the terms of service that seem awfully pertinent. The first is in boldface:

For clarity, you retain all of your ownership rights in your User Submissions.

and the second, more important part:

The foregoing license granted by you terminates once you remove or delete a User Submission from the YouTube Website.

Van Buskirk makes this point in the comments to his post that the term “ownership” begins to lose its meaning once you have granted a royalty-free license as broad as the one YouTube claims, and I agree with him on this. But the point about the User’s ability to terminate the license by removing the work from the website here is critical.

So let’s take Van Buskirk’s scenario in which YouTube sells your song to an ad agency looking for “edgy” work in its new commercial. (This of course would have to be an ad agency that doesn’t belong to one of the multinational marketing conglomerates, who are completely in bed with the music publishing industry. The agency would also want to overlook the shitty transcoding quality of the audio, but let’s pretend there is such an agency.) YouTube gets money, you don’t. The commercial airs, you cry foul. You remove the video from YouTube. The license has now been terminated. If the ad agency’s media company allows the ad to run again on any station, in any market, you can sue them for all the money you could want, far more than you would have been paid had the ad agency only come to you directly. Which money of course the ad agency would turn around and sue YouTube for. And then of course YouTube will only then ask you to produce all the written releases you have from everyone in your video (as required in the same section of the Terms of Service), and so then all your friends you used as extras can sue you for the money you won in your lawsuit.

Oh, I’m sure YouTube can’t WAIT to start monetizing your content.

Look, I understand the fear, I just don’t buy it.

The license is there so they have permission to transcode your work (creating a derivative), play it online (display/perform), or elsewhere if they can figure out how to convert to mobile phones or tvs. The language is overly broad to cover their asses, but that’s what corporate lawyers do.

If there is any real money to be made off your work by YouTube or its partner corporations, they will come to you directly and get you to sign a new, far more specific contract that will also cheat you out of money that you so rightly deserve.

Tags: YouTube


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