When Microsoft announced Bing at the All Things Digital Conference last week and soft launched the preview of it yesterday, they were doing more than launching a new search engine, they were, according to many, finding a whole new direction for the company on the Web.

Though most seem to think that Bing is a vast improvement over Microsoft’s Live search, it seems the preview has not sufficiently wowed most to believe it better than Google. Still, when a major search provider revamps its offering, it causes many to take a fresh look.

Over the next few days, I’m going to be taking a closer look at Bing and what it may mean for content creators and copyright holders. Today, we’re going to take a look at Bing’s DMCA policy and how it stacks up against Google and Yahoo!

Bing’s DMCA Approach

Unsurprisingly, since Bing is owned by Microsoft, its approach to the DMCA is no different than it was on Live.com or other Microsoft sites. If you pull up Bing’s home page and look at the footer, you will see a “Legal” link.

On that page (which is still hosted on the live.com domain), under item 29 in their terms of use, you’ll find the “Notices and Procedure for Making Claims of Copyright Infringement” along with a link to this page that provides the necessary contact information as well as the information required for a correct notice.

Microsoft also has a filing with the U.S. Copyright Office (PDF), though the filing has not yet been updated to add the Bing name to it (this is not a shock as it takes months for the USCO to add a notice once it has been submitted).

Largely, the policy is the same one I reviewed in 2007, the only difference being that Microsoft is making it a bit easier to find the information by making the link clickable. It is a small change, but an important one in that it opens up the actual DMCA policy to the search engines.

Comparisons To Google/Yahoo!

The same as the Microsoft policy has not changed a great deal, neither has the Google’s or Yahoo!’s.

Yahoo! still has a very efficient and easy policy that provides a clear link at the footer of each page and a good explanation of the rules. Also, from personal experience, Yahoo! is very fast in dealing with infringements and is also very good about being fair to its customers and doing what it can to give them a chance to respond should the notice be erroneous.

Google, despite strides with its Blogger product, has made almost no changes to its search one. It still has the bizarre policy that forces copyright holders to fax or mail in a DMCA notice (unless one is willing to use my work around) . Google also submits all DMCA notices to Chilling Effects, something I support, so they are available (minus private information) for public viewing.

In the end, Yahoo! still has the best policy in terms of clarity and efficiency but Microsoft has made subtle changes to make it less obstructionist and at least comparable. Google still is clinging on to an outdated policy that is both hindering the filing of notices and making Chilling Effect’s work more difficult.

Unfortunately, I have not had a reason to file with Microsoft for some time so I am unaware if they are still having an issue with notices disappearing.

Bottom Line

Bing may be a new search engine, but its DMCA policy is the same as the last one. Microsoft hasn’t even bothered to move its TOS information to the Bing.com domain.

Fortunately, that is not necessarily a bad thing. Microsoft’s policy, though never particularly great, has always met the minimum requirements. They’ve done their part and, despite some filing issues over the years, they do seem to respond to notices eventually.

The question now is when and if Bing will become big enough to warrant it becoming a major target for takedown notices. Currently, many people ignore Live.com and even Yahoo! in favor of just filing notices with Google to save both time and money.

I don’t know what the magical threshold is on this matter, but it appears that, for most, that it hasn’t been met yet.

Tomorrow

Tomorrow we’ll take a look at how useful Bing is for detecting plagiarism and we’ll see if it is capable of matching Google or Yahoo in terms of returning valid results when searching for duplicated content.

However, far too many people learn too late that agreeing to a TOS is not only a binding contract, but that those contracts often force you to waive rights in your work that, otherwise you’d never give up willingly.

So, in the spirit of the DMCA seven series I did previously, I’ve decided to start looking at the TOS agreements of popular sites on the Web and work to find out what rights you give up and what you can do about it.

This week, we’re going to start with video sharing sites, some of the most popular, and controversial sites on the Web for sharing content.

TOS Link: Terms of Use
Rights Granted: “…use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the YouTube Website and YouTube’s (and its successors’ and affiliates’) business.”
Sub-Licensable: Yes
Revokable: Yes
How to Revoke: Delete Videos
Notes: The scariest thing about YouTube’s license is that YouTube reserves the right to license your videos posted with just about any party they desire. However, that license is revoked by simply deleting your videos from the site. However, the license does not end upon removal of the videos, but rather, “within a commercially reasonable time after you remove or delete your User Videos from the YouTube Service.” What that exactly entails, is unclear.
Conclusions: YouTube certainly claims a wide collection of rights. But they specifically mention the use of use in “any media formats and through any media channels” as well as use for the promotion of the site. Users should take heart at the easy revocation of the license, but should also be warned that the license granted by posting a comment is both perpetual and irrevocable.

TOS Link: Revver Member Agreemente
Rights Granted: “…use, reproduce, modify and adapt (solely to permit Revver to conform and adapt Your Video Content to technical requirements, including without limitation the right to adapt to streaming, downloading, broadcast, mobile, digital, thumbnail, scanning or other technologies), excerpt, publish, transmit, publicly perform, display, reference, store, host, index and cache, in any form, medium or technology now known or later developed, any Video Content, Member Comments or materials You submit to Revver, in whole or in part, whether created by or for You, by any method, and in any and all media, whether currently existing or hereafter developed.”
Sub-Licensable: Yes
Revocable: Yes/No
How to Revoke: Disabling Account or Providing Notification
Notes: Revver’s policies are confusing and difficult to understand for event he most astute in this area. They actually have three licenses, a license to Revver, quoted above, a online commercial license to others (limited to the purposes of the Revver Syndication Network) and an irrevocable non-commercial distribution license that uses Creative Commons’ BY-NC-ND License.
Conclusions: If you discount the mandatory and irrevocable CC license, the Revver License is not that much different from other sites. What is unique is that everything in the Revver license is built around commercial use. This is because Revver puts ads in all videos and shares profits with users. Much of the difference can be found in that.

TOS Link: Google Terms of Service
Rights Granted: “…reproduce, adapt, modify, translate, publish, publicly perform, publicly display and distribute any Content which you submit, post or display on or through, the Services.”
Sub-Licensable: Yes
Revocable: No
How to Revoke: N/A
Notes: The rights Google takes in the work are relatively narrow and limited only to Google’s “enabling Google to display, distribute and promote the Services”. Google also hints that the license can be revoked in some cases, but I was unable to find a TOS specific to Google Video to determine how.
Conclusions: Though Google has a bad rap about removing infringing works, their license here is fairly reasonable. Though the license itself is irrevocable, the scope is so narrow that removal of the work would be tantamount to a revocation in most regards. Still, it is worrisome that there is no clear way to terminate the agreement.

TOS Link: Blip.TV TOS
Rights Granted: “…to use, reproduce, create derivative works of, distribute, publicly perform, publicly display, transfer, transmit, distribute and publish that content for the purposes of displaying that content on Blip.tv and on other Web sites, devices and/or platforms.”
Sub-Licensable: Yes
Revocable: Yes
How to Revoke: Remove Video & Request Permanent Deletion
Notes: Most video sites, in their TOS, let you know that a copy of your video, albeit not one for display, may still be available after you delete your copies of the content. Blip.TV offers you a means to delete even those hidden copies by contacting customer service.
Conclusions: All in all, Blip has a fairly narrow license and even promises not to sell advertising on your content without permission. It also provides control over what formats your work is distributed in “To the extent reasonable and possible.” Their dedication to being an open platform is taken very seriously and reflects well in the relative fairness of their terms.

TOS Link: Terms and Conditions
Rights Granted: “…to use, copy, prepare derivative works of (including without limitation, to rename, edit, shorten, split the videos into different segments, and use the entire video or segments as part of compilations), display, and perform the User Submissions in connection with the Website and Metacafe’s (and its successor’s) business, including without limitation to grant access to the Website to third parties to view the User Submission (and derivative works thereof).”
Sub-Licensable: No (transferable)
Revocable: Yes
How to Revoke: Notification
Notes: It is important to note that Metacafe’s Producer and Producer Rewards programs have different licensing requirements. Second, though the license does not specifically say that it is revocable, it does offer a means to terminate the license. Also, the license does not say that the rights granted are sub-licenseable, but that they are only transferable. This means that they can be given to another company, for example, in the event of a buyout, but can not be sub-licensed, such as you licensing your work to another site while retaining their rights.
Conclusions: All totaled, Metacafe has a very reasonable license and is one of the few on the list that does not explicitly require you to grant them the right to sub-license their rights in the work. It also limits its rights to uses “in connection with the Website” and only grants third parties the right to view and use the content for “non-commercial and personal use”.

TOS Link: Terms of Service
Rights Granted: “…reproduce and display Your Content, in whole or in part, and to display, perform, distribute and transmit the same via the features that enable the Website to be accessed both on the Internet and through any other electronic communication media or technology, now known or later developed, and to adjust the format of Your Content as necessary for the purposes of reproduction, display and transmission.”
Sub-Licensable: No
Revocable: ???
How to Revoke: ???
Notes: Dailymotion is the only site that makes no mention of their license to your content being either sub-licenseable or transferable. However, it also makes no mention of how and if the license can be revoked, even though it does so with the the license it grants you regarding its copyrighted work.
Conclusions: Dailymotion’s license, to me, feels incomplete and that worries me. Though the license to use your content is very narrow and would, most likely, be effectively revoked on the deletion of the video, I would feel better if the license would explicitly talk about whether the license is transferable, sub-liceseable and revocable.

TOS Link: Terms of Use
Rights Granted: “…publicly display, publicly perform, distribute, and reproduce the Materials in any manner and in any medium, including, without limitation, through physical copies such as still photos, videos, and CDs, by television by any means, on or via the Internet, including, without limitation, the World Wide Web, and any other two-way transmission control protocol / internet protocol (TCP/IP) based distribution network or similar networks or technologies now known or hereafter to become known….”
Sub-Licensable: Yes
Revocable: No
How to Revoke: N/A
Notes: Break limits users to personal and non-commercial use of the content on the site. It also designates the the license is perpetual, meaning that there is no way to exit it. All of the rights above are assigned to Break and can not be revoked without special agreement.
Conclusions: Break’s license is worrisome to me. Not only does it grab an extreme amount of rights, including specifying some uses that go well above and beyond what one would expect from posing on a video sharing site, but it also states that the rights are perpetual and offers no means to terminate the agreement. It, to me, seems to be an extreme rights grab that is beyond what is actually necessary to run the site.

Conclusions

By in large, most of the video sharing sites have reasonable terms of service that allow you to quickly and easily exit the agreement if you are unhappy with the way the site is treating you and/or your content.

I am hesitant to offer any conclusions on which site is the best simply because, though some sites grab more rights than others, it might be a worthwhile exchange. Many, for example, will be fine with Revver since the site shares revenue and YouTube might be acceptable to others due to its large community.

Personally, for those seeking to make money, I feel that Revver is the strongest. Those seeking to keep as many of their rights as possible, Blip.TV is very strong as is Metacafe. Also, Dailymotion, with a little more clarity, could also be a great site.

In the end, you have to decide for yourself how much risk you are willing to take and what rights you are willing to surrender in your work. It is important to read the terms very carefully and draw your own conclusions.

As for me, I’m moving my videos over to Blip.TV in the coming weeks. Not only do I like their terms, but also their player and general appearance suit me better.

However, that is just my personal decision, I know many will disagree with it.