Video Players and Implied License

As more people create video content for the Web and more existing video producers begin publishing content online, there’s going to be an increasing number of copyright disputes over video.

We’re already seeing a lot of this on YouTube where clips are routinely pulled down for containing infringing material, some of it dubiously, and YouTube’s content matching system is getting a serious test of its effectiveness as the site parses 24 hours of video every minute.

But while many of the legal issues surrounding video are mired in messy topics such as fair use and confusing licensing schemes, other issues, quite frankly, aren’t. In fact, some of the issues are downright simple, even to the casual observer.

One such issue is the issue of embedding clips. Though there are some interesting copyright questions when embedding clips from YouTube that contain infringing material, many of which were expanded on by the EFF, embedding content legally uploaded to YouTube, or any other video service, should be a no-brainer if embedding is enabled.

Unfortunately, one copyright holder (who shall remain unknown to me and everyone else) thought differently and expressed concern over such use.

However, those who routinely embed YouTube clips need not worry. You are almost certainly covered under an implied license and have little to fear. Still, the issue warrants at least a brief look, just to put it to rest.

The Issue of Implied Licenses

An implied license is more typically an issue when dealing with purchased content. If there’s no written agreement between the parties, one has to look at what both sides intended, including what use was to be allowed/disallowed. These cases are routinely very messy in court and often hinge on emails and other correspondence between the parties before the agreement took place.

However, on the Internet, we grant implied licenses to our content all of the time. For example, by merely posting works to the Web without blocking access, you grant Google an implied license to index and cache the content, at least according to Field v. Google case.

The idea is fairly straightforward. By taking certain action with your content, such as posting it on the Web, and not taking steps to prevent certain foreseeable inevitable consequences, you grant an implied license for those uses.

The same holds true for video uploads. If you upload a video and don’t disable embedding, it seems logical that you are also offering an implied license to embed the content. As such, those who do so should have no fear of being sued or even threatened.

However, even if one disapproves of embedding clips, there is no reason to involve copyright in the dispute, instead, YouTube and most other video services make it trivial to disable embeds. In short, you can prevent embedding without sending a single threatening letter or taking any action at all, other than the changing of a setting.

All in all, it seems very simple, if you turn on video embedding, don’t get upset when others embed your videos.

Limitations on the Implied License

All of that being said, the implied license is not without limits. In fact, judges have traditionally interpreted implied licenses as narrowly as possible and Internet content is no exception.

First, and most obviously, it doesn’t allow embedding if embedding is disabled. Though several sites promote (mostly non-working) ways to embed blocked videos, such embeds may constitute a violation of the creator’s copyright as there is an actual license in this case saying that they do not wish embedding to take place.

Furthermore, even if embedding is enabled, if the owner gives some kind of clear indication they don’t wish to have their content used in such a way, it would once again be an actual license that would trump the implied one. That being said, it would also be stupid and very questionable to state you don’t want your videos to be embedded while simultaneously not disabling the feature.

Finally though, the implied license does not allow users to download YouTube clips, such downloading is technically forbidden by YouTube’s terms of service anyway (without a specific download link), nor does it allow the reposting of content through another player.

As discussed previously when dealing with RSS scraping, taking content out of a format and redistributing it, even if that format is easily distributed, removes protections and the ability of the creator to protect, market and profit from their work. Also, it is not widely considered to be a foreseeable and inevitable consequence of posting work online in any format, much less video.

In short, if embedding is enabled, it is perfectly legal to embed legally uploaded clips, but the implied license more or less ends there.

Bottom Line

With so many legitimately confusing and complicated copyright issues, there is little reason to make an issue as something as straightforward as embedding a legitimate YouTube clip.

Considering that this is something that can be trivially defeated by setting an option in your YouTube account, there is little reason to even mention copyright in the same sentence.

Instead, I think most creators would be better suited focusing their efforts on the plagiarists, spammers, and other infringers who can’t be so easily stopped and can have a much more drastic negative impact on your work.

2 comments
albi107
albi107

I have a strange case:

A video is uploaded on a official channel, they have enabled the embed code, but the same company is requesting the embed video to be removed from my site. They sent a DMCA to remove from google search. After that I did a counter-claim and my url-s were reindexed.

Now the the sent the claim to my host and to my domain registrar?

Am I safe?

Jonathan Bailey
Jonathan Bailey

Sorry for the delay, I'm not getting comment alerts reliably.

Regardless, I would say that you are safe. There's an implied license when you provide the embedding code. However, IANAL but that seems to be the consensus among myself and most of the copyright experts I know.

Hope that helps.

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