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.

Despite running several domains, I am nowhere near my bandwidth limit for my account and am in no danger of going over my allotted 1 TB of bandwidth. I could probably host all of my sites many times over without any problems terms of raw transfer.

Yet, whenever I want to insert media files into my site, be it images or mp3s of the podcast, I seek out alternative hosting. Be it from a photo sharing site such as Photobucket or, my current favorite, a file hosting site such as Boxstr (see update below), I offload these media files as much as practical.

Why do I do this? To protect this site and ensure that, no matter what happens, it stays up. By offloading these media files, I mitigate against not one, but two of the biggest threats that this site could face on the Web and avoid some potential headaches down the road.

The Digg Effect

One of the most obvious reasons for offloading media files is to shield against any sudden spikes in bandwidth use. As a site that has survived two Digg Effects, a Slashdotting, mentions on Boing Boing, an appearance Fark and dozens of StumbleUpon runs, Plagiarism Today has seen what traffic spikes can do and. Fortunately, since the move to Media Temple, this site has survived them all with grace.

However, that doesn’t completely eliminate the threat. After all, if a large image, or worse yet a podcast, hits the front page of Digg that bandwidth can still disappear pretty quickly. Offloading it ensures that, even if the media goes down, the site remains viable and that I am not slammed with overages by my host. That serves me better and it serves the visitors better.

However, the truth be told, even if a large file on my server hit Digg, I could probably survive with minimal trouble. One TB of data would likely take over a million downloads to use up completely.

In truth, the real reason is much trickier and, sadly, much more likely. Worst of all, it is a risk I expose myself to solely by what I write about.

Fair Use and Evildoers

When I started Plagiarism Today, I knew that I was going to be held to the highest standards both in terms of copyright and attribution. There have been many times that I’ve wanted to do something with this site but felt that the copyright issues were just too uncertain, even if others on the Web were doing the exact same thing with no major problems.

However, in recent months, I’ve made a conscious attempt to add more images, videos and audio files to Plagiarism Today and, over all, I think it’s been a success. However, it opens up a new risk. Where the content on the site is written directly by me, the images are usually screenshots of logos, sample images of a site or other demonstrative works used for clarification.

I am very confident that all of my use is well within the bounds of what would likely be considered fair use and certainly well within what one would call standard practices on the Web.

Still, this doesn’t stop someone from filing a DMCA notice. If there’s one thing that I’ve learned from keeping on top of copyright news, it is that the law is generally used for good but, in some cases, can be used stifle free speech.

The mere fact that I am talking about and instructing in the responsible use of a controversial law almost instantly makes me a target for a false notice, a fact made patently obvious by some of the emails and comments I have gotten.

Quite frankly, given the level the hostility has reached at times, I’m only stunned that it hasn’t happened already.

Teaching Me a Lesson

When analyzing the risks of running this site, I decided that there were two types of individuals likely to file a DMCA notice notice against me.

There was no real way to mitigate against the first kind of extremist. Their claim would have no basis on reality and could just file a notice against anything on the site.

I did, however, work to find a host with a fair DMCA policy and I know the person who processes claims here at Media Temple. I am confident that, if it did happen I would be able to keep the site live and that they would not simply “pull the plug” like some hosts.

However, even if my host did shut me down, it would be a disaster for the person filing the notice. As I’ve worked on this site, I’ve come to know and befriend many IP attorneys. Odds are I could find someone to help me go after someone filing a patently false DMCA notice.

Such an event would not be tolerated.

Fortunately, the first possibility is very unlikely. False DMCA notices are rarely random and even those used to stifle unwanted speech are based somewhere in a misconception about copyright law. That makes the second scenario much more likely.

Fortunately, that of notice can be mitigated against much more easily.

Since everything written in this blog is by my hand. There is little chance of someone filing a notice against the text. The blogging application, WordPress, is open source, and both the header image and theme are used with permission and are properly attributed.

The only content on this site regularly used from other locations and without prior approval are the images and some of the content contained in the videos.

Though, as I said above. I’m comfortable that the use is legal, that is not a 100% guarantee against a DMCA notice. That is why it is important to be prepared for the possibility.

Shifting the Burden

The idea is simple. If someone objects to the use of a screenshot on this site and decides to skip contacting me or posting a comment in favor of a DMCA notice, they will be filing against the image host and not the company actually hosting my site.

Yes, the image will go down and it is entirely possible I could lose my account at that company, but the rest of the site will stay up. Even better, all of my images are backed up and can be easily reposted elsewhere if needed. The same goes for the videos and the audio.

In the event of such an attack, Plagiarism Today will suffer no downtime and there will only be a brief outage for the content so long as I am at my computer or nearby when it happens.

This is a pretty basic idea and it is one I started working on shortly after my first encounter with iPowerWeb but only started actively using in recent months as I’ve escalated the amount of images on the site.

However, it is a technique a lot of bloggers could benefit from, especially those that deal with controversial topics that might draw unfair DMCA notices from critics with little concept of how the law works.

Application (And Removal)

To use this system on your site, all you have to do is ensure that you only put things on your server that you have created or have direct permission to use. Anything that relies on fair use, no matter how clear cut it seems, should be hosted elsewhere.

Personally, I use Revver for video, because they have a fair copyright policy and are CC-friendly, and Boxstr for other file types as it allows direct linking and high bandwidth limits without any restrictions (see note below).

I, generally, do not recommend YouTube as their terms of service is overreaching and Flickr is frustrating due to its restrictions on the types of images you can use and requirement that the image be linked back to the Flickr page, rather than to a third party.

Both of these sites have at least the potential to create more IP issues than they resolve by forcing you to give up rights

Conclusions

For all of the hype that they get, false DMCA notices are actually very rare. Your average blogger has very little to worry about them and can probably go about their business relatively secure that it will never happen to them.

But those who deal with controversial subjects or frequently use content under fair use may want to consider using this technique to better shield themselves against the threat of such an notice.

When you consider that decent file hosting is both free and readily-available, there is very little reason to not take advantage of such services. In addition to providing protection against traffic spikes and DMCA notices, it also makes it easier to move your site to a new host (fewer files to transfer) and helps organize and backup the files you use.

All in all, using file hosts is a natural decision for many reasons, it just happens to provide a form of protection against a rare, but potentially devestating, form of attack.

Note: Just before submitting this I discovered that Boxstr has a similar linking requirement to Flickr. I apparently overlooked this when originally signing up for the site as it is worded differently and not made as clear as with Flickr. I am going to transfer my images over to Photobucket but leave the audio files with Boxstr as I already provide direct links with for all audio files.

What I’ve done is recorded and uploaded a modified version of a presentation that I gave to the Virtual Assistant Revolution group in September that goes over the basics of preventing, detecting and stopping plagiarism on the Web.

It is a lengthy presentation, this version clocks in at about an hour and twenty minutes, but it provides at least a decent overview of the issues at hand. It doesn’t go into much detail into any one issue, but offers fairly broad coverage of the needed topics.

The video is embedded in this post below the fold and is available directly from Revver. If you wish to embed it into your site or blog, please feel free to do so.

Also, I am taking requests for future videos. From here on out I plan to create much shorter videos, under ten minutes in length, that demonstrate demonstrating various aspects of fighting plagiarism. I am taking suggestions or requests for these upcoming clips.

Finally, my thanks goes out to the Virtual Assistant Revolution forum. They were a great group and I thoroughly enjoyed speaking to them. They were also very generous in allowing me to use this presentation in this manner.

I hope you enjoy the presentation and find it useful.

These sites, many of which have been sued or are operating under the constant threat of being sued, have their very livelihood centered around whether or not they qualify for DMCA safe harbor protection. They have more motivation than any other kind of host to ensure that their DMCA/copyright policies are up to code as even a minor slip up could become a mortal wound in the hands of an aggressive corporate lawyer.

So how do they hold up? Well, let’s take a look at seven of the top sites and find out.

Format: Email
Email Address: copyright at youtube dot com
Location of Policy: Copyright Notices Page
Registered with USCO: Yes
Comments: Though purchased by Google some time ago, YouTube has operated as its own company and has maintained a separate policy when it comes to DMCA Notices. Overall, their copyright policy is a model for other sites like it. Not only do they provide the link to their policy on every page, but it is a well-written policy with detailed instructions for filing a notice and a link to instructions for filing a counter-notice. They also have a Content Verification Program, which is clearly targeted at large companies, that expedites the sending of multiple notices by giving rightsholders access to an online tool that can remove infringing works. Though such a tool might be ripe for abuse, and has been on some occasions, it is practically a necessity when dealing with large media companies, such as Viacom (see below).
Grade: A-

Format: Email
Email Address: amac at google dot com
Location of Policy: Google’s DMCA Policy
Registered with USCO: No (registered as Google)
Comments: Google’s other video site, Google Video, is definitely a part of the traditional Google structure, including their flawed and excessively difficult DMCA policy. Unfortunately, there is not much that I can say about Google’s policy that has not been said before. As with their other services, their requirement of a handwritten signature not only goes against the intent of the ESIGN Act, but throws up unnecessary and frustrating roadblocks to individuals seeking to file DMCA notices with Google. This may be one of the reasons why infringing material seems to stay up significantly longer on Google Video than other video sharing sites.
Grade: D

Format: Email
Email Address: CR-agent at metacafe dot com
Location of Policy: Copyright Policy
Registered with USCO: Yes
Comments: Metacafe keeps it simple. Their policy is clean, simple and covers all of the bases. It offers all of the needed information, save details on filing a counter-notice, and is offered as a link at the footer of every single page. The only thing that is exceptional about their policy is that you are directed to send notices to the VP of Content and Marketing, Daniel Sevitt, rather than to either the counsel or their abuse team. Perhaps they do not get as many notices as other video sharing sites. Regardless though, their policy seems to be in order and hits all of the right notes. There is very little not to like about it.
Grade: B+

Format: Email
Email Address: support at break-inc dot com
Location of Policy: Item Seventeen, Terms of Use
Registered with USCO: Yes (outdated)
Comments: Inconsistency is a major problem with Break. Their USCO registration has users email their notices to jeff at jsuto dot com where their terms of service, the most up to date information, has it going to the address above. They’ve also buried their policy deep within their terms of use, literally making it one of the last items covered. Other than the odd location, the policy is complete, providing good instructions on filing a notice and, though it lacks any information on a counter-notice, it seems to follow the letter of the law.
Grade: C

Format: Email
Email Address: US-notification at dailymotion dot com
Location of Policy: Copyright Notification Policy
Registered with USCO: Yes
Comments: As a French site, Dailymotion is not necessarily bound by the DMCA. That is why it is so interesting that they do so and do it very closely, putting their policy proudly at the footer of every page. Their copyright policy is straight to the point, covering all of the basics, though omitting information about a counter-notice, and offering an easy email address to send in complaints too. Strangely missing from the Web version of their policy is any physical address, however, a glance at the USCO registration shows why, their physical address is in Paris and their fax number is also international. All in all, they took what could have been a difficult copyright situation and made it very simple. However, with the rules for notice and takedown the in EU being so relaxed, one might say that Dailymotion is actually setting the bar too high. However, I would argue they strike a good balance, using a system that should already be familiar with most American rightsholders while protecting their users from frivolous complaints.
Grade: B

Format: Email
Email Address: copyrightnotice at ifilm dot com
Location of Policy: Copyright Compliance Policy
Registered with USCO: Yes
Comments: Having already looked at YouTube’s DMCA policy, we now get to look at how this Viacom-owned video sharing site follows the law itself. The policy itself is robust to a fault. Clearly written by attorneys it is the lengthiest of the DMCA policies in this section and can best be described as wordy. However, it is very complete, containing detailed information on filing a notice, counter notice and a lengthy policy for dealing with repeat infringers. Though weak in organization and hard to read, it more than gets the job done. Viacom is also generous enough to place the link to the policy on every page in the footer, and offer all of the major forms of contact to reach the host, email, fax and postal mail. However, not much in this policy goes above and beyond what is required by the law itself. It gets the job done, but other than its convenient location, does not do a great deal to help copyright holders out.
Grade: B-

Format: Email/Form
Email Address: steven at revver dot com
Location of Policy: Copyright Information
Registered with USCO: Yes
Comments: Revver’s DMCA policy is so short that, on first read, you think you missed it. It’s a few short sentences about how Revver supports copyright all followed by an invitation and address to postal mail your DMCA complaint in. There is no instruction on filing a notice, no email address, no fax, no counter-notice information, just a lengthy explanation about Creative Commons Licensing, fair use and remix culture. Important information, to be certain, but not helpful to someone seeking to stop non-transformative use of their work. With a little more digging, you find you can use their contact form to send a DMCA notice, but it is not a form designed for the purpose, instead, it is just a regular email form, the same used to send help requests and feedback. To find more practical information, you have to look at their USCO filing, which has their email address and fax number. Does this policy follow the law? Probably. But it seems openly hostile toward copyright notices and gives me an overall uncooperative feeling.
Grade: C-

Conclusions

Compared to the social news sites, the video sharing sites are a breath of fresh air. It is clear that the difficult legal climate they operate in has, for the most part, pushed them to follow the DMCA very closely and encouraged them to work with copyright holders in good faith.

Of the seven reviewed, none failed, Google was the only “D” and the others were varying degrees of acceptable.

One interesting twist in this evaluation was that Youtube’s DMCA policy is much more forward-thinking than the policy on Viacom’s iFilm site. Though Viacom’s policy is more than complete, its complexity and lack of rightsholder-friendly tools put it far behind YouTube. As a rightsholder, I would much rather work with YouTube.

Though YouTube as well as sites like it might have their DMCA safe harbor protections called into question for other reasons, there is little doubt on most of these sites, save Google Video, comply with the intent of the law and have good, ethical practices for working with copyright holders.

After seeing how poorly other sites perform in this area, any problems or complaints I have about their policies is mere nitpicks.

What the Ratings Mean

A – A complete policy that goes well above and beyond what is required. Often shows real innovation.
B – A solid policy that is well-thought out and is very complete. Shows consideration for submitters and users.
C – An average policy, follows the law to the letter but doesn’t go out of its way to help those submitting a notice or its users.
D – A policy that, while mostly complete, still raises severe ethical and/or legal questions.
F – An incomplete policy that fails to follow the DMCA or local laws in a severe way.

Pluses or minuses are used to indicate how the where a host fits in relationship to other hosts in that that tier.

Up Next: Blog Hosting Companies (Note: I know that the blog hosting article was scheduled to run this week, it will be running next week instead. I am sorry for the confusion but I am working to compile more information for the blog hosting article.)