Before offering our posting recommendations, it’s helpful to review the basic contours of the TOS. These are general areas of common ground, but you should review the specifics of each site’s TOS before posting.
- The companies acknowledge that they are not getting a copyright interest in any of your photographs. (When discussing photographs, unless noted, the same would generally be true for any media).Representative example from MySpace:MySpace does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the MySpace Services. After posting your Content to the MySpace Services, you continue to retain any such rights that you may have in your Content, subject to the limited license herein.
- However, the companies do get a royalty-free license to use the images posted until you either remove the content from the site or terminate your account.
- Most, but not all, of the sites allow you to have some control over who will be able to view your posted content. For example, Photobucket makes posted content available to everyone — even nonmembers who are outside the Photobucket services — unless you mark your content as “private” and then it is available only through the Photobucket services. Facebook allows you to be even more restrictive. You can limit your audience to only those fellow Facebook members you’ve allowed to be labeled as “friends.”
- Subject to any restrictions you may have chosen, the Companies can distribute their services through all media outlets.
There is also some common ground with respect to how the TOS discuss the rights of other users with respect to the content that you post.
- Users are prohibited from infringing the IP rights, including copyrights, of others.
- Users have a right to report copyright infringement to the company and the company has the right to take down infringing material and/or terminate the account of the infringer. (Termination is usually reserved for repeat infringers).
- The procedure for reporting and acting on allegations of copyright infringement is very similar across all companies and seems to comply with the Digital Millennium Copyright Act (“DMCA”). Several expressly state that they do comply with the DMCA.
However, in our view, many of the TOS could be more explicit in stating what others can and (more importantly) cannot do with the content posted by other users. Photobucket and YouTube are admirably clear in this regard. The Photobucket license provides a very broad licensing of rights using concrete examples:
Photobucket and/or other Users may copy, print or display publicly available Content outside of the Photobucket Services, including without limitation, via the Site or third party websites or applications (for example, services allowing Users to order prints of Content or t-shirts and similar items containing Content).
YouTube is equally clear in its more restrictive licensing of rights:
Content on the Website is provided to you AS IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners.
The dramatic difference in the license rights granted by Photobucket and YouTube underscores the fact that you must read the TOS before posting your images.
YouTube and Vimeo in Detail
Unlike some of the photo sharing sites on the Internet, YouTube and Vimeo have admirably clear Terms of Service (TOS) regarding what each of the companies is permitted to do with your video and, perhaps more importantly, what other users are permitted to do.
Both sites include language that seems very broad. This YouTube language is similar to what is also included on the Vimeo site:
For clarity, you retain all of your ownership rights in your Content. However, by submitting Content 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 Content in connection with the Service and YouTube’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under these Terms of Service.
However, both sites also make clear that these rights are limited to the functionality necessary to provide their services. Vimeo’s TOS has two sections. The first section is called “Lawyer Speak” and is the official TOS. In the margin, they have “Vimeo Speak” which includes a summary of the TOS in something that is closer to plain English. Here is how “Vimeo Speak” describes the necessity and limits of its broad language:
YOU MADE ‘EM, YOU KEEP ‘EM. YOU OWN YOUR VIDEOS — ALWAYS.
In order for us to accept your videos and provide the Vimeo services (all while following the law), we need certain rights and licenses in and to your videos, including:
- Right to copy your video. Example: Vimeo content is stored and passed through multiple servers, and is served to multiple users on multiple machines to allow our site to be up and running globally. Each time we put your video on another server, we are making a copy. This right lets us do that.
- Right to transmit, distribute & perform your video. Example: to send your videos from server to server; to show your videos to one or more Vimeo users and to display your videos on vimeo.com (or other websites), these are the rights we need.
- Right to create derivative works and modify your video. Example: the Vimeo system works by transcoding the video files you upload so that they may be stored and served smoothly and properly each and every time. When we transcode your video, we are modifying it and making another version — or a “derivative” version. We also may need to resize the video when displaying it to users and are thereby ‘modifying’ it. These rights let us do that.
- Right to incorporate your video into other works. Example: the Vimeo site and player are also copyrighted and protected intellectual property. We incorporate your videos into the site and player. This right lets us do that.
You also grant Vimeo the right to use a portion of any video that has not been designated “private” for Vimeo mashups or other promotional purposes such as our Offline events or at conferences. Vimeo will not use your videos for other commercial purposes without your approval.
These rights and licenses are granted by you to us for free, so we can provide you with our services.
When you remove your content from Vimeo, these licenses to your videos terminate and we will no longer show them.
By placing content on Vimeo, you also give Vimeo users the right to view and use your content, as intended through the normal functionality of the website.
Once you get beyond the seemingly broad language, the rights given in the TOS for both services are fairly curtailed. Both providers limit their use to delivering your video within the functionality of the service. (The one exception is that both services also reserve the right to use your video to promote the service.) Both sites also provide that upon your removal of the content from their sites, the license you have given them will be terminated and they will, within a reasonable time, stop the delivery and use of your content.
Both sites are also clear that other users of their services have the right to watch your video content, but do not have permission to copy, sell, or use the content for commercial purposes outside of the service. The one area where other users may benefit commercially from your content is by embedding it on their websites. This allows visitors to third party websites to watch your video there instead of watching it while at Vimeo or YouTube. Therefore, if your content is driving people to someone else’s website, they might benefit commercially from that activity. (Note that YouTube prohibits users from aggregating embedded YouTube videos for the purpose of selling advertising on a blog or website.)
To summarize, the TOS for both sites are relatively clear and complete, and probably don’t contain a license of rights that would surprise you. Nevertheless the problem is, once again, the difference between legal rights and technological capability. Although neither site allows users to copy and redistribute copyrighted content, both sites are full of copyrighted material that has been copied and is being redistributed. Lengthy sections of movies and TV shows are readily available, repurposing of copyrighted material (aka derivative works) are commonplace, and its easy to find a complete version of just about any song you want to hear with a variety of accompanying video content.
What’s that all about?
There are three reasons for the disparity between what is supposed to happen versus what actually happens.
- The first is that even though neither YouTube nor Vimeo want to make it easy for you to copy the videos you see, there are many ways of doing just that. There are a multitude of free software applications available, which will capture video clips that users are able to view online. So, the technical ability to copy and keep posted video content is available to everyone. Although normally only advanced users jump through the necessary hoops to bypass copy protection, the people who are familiar with editing and uploading video might already be the type of users who are able to make copies at will.
- The second is that YouTube and Vimeo believe they are protected by the safe harbor provisions of the Digital Millennium Copyright Act. In short, the Act states that YouTube and Vimeo need not police their site to see if copyright violations are occurring. Instead, they are not liable if they follow a set procedure for allowing people to file claims of copyright infringement and then respond to valid claims by taking down the infringing content. Although some of the big media companies have systems in place to detect their copyrighted content and quickly get the content removed from the sites, the average user won’t have the necessary resources to find copyright violations.
- The third is that many copyright holders don’t mind the technical infringement. They want to get their content spread far and wide for promotional purposes. That is why a band might not want to distribute songs for free over the internet, but won’t mind if a fan posts a video of a live performance of the same song.
Because of the prevalence of copyrighted material appearing at YouTube and Vimeo, users may assume that they have a right to use what has been publicly “broadcast” through YouTube or Vimeo. After all, not many people are in the habit of reading TOS.