Video Sharing Sites Terms and Conditions: A legal drive-by

Ever since uploading my Magnum Opus No. 1 (Pipe Cleaner Snake meets The Tooth) I’ve been looking at the terms and conditions of the various video uploading sites.

Frankly, I’m not happy with what I read. These are turgid texts, I will not kid you. Nonetheless, it seems clear to me that YouTube, blip.tv, Google video and others have had Terms and Conditions drafted in a what the legal jargon sometimes calls a ‘maximal’ manner.

Basically that means they’re looking to get their hands on every Intellectual Property right that isn’t nailed down.

None are ideal. If you want to retain total control over your video pay for it to be hosted yourself. However, if you’re willing to let some, but not all, your rights go you might settle for finding out which is least objectionable.


Current frontrunner:
Video Egg
Laggard: Clipshack

YouTube
Relevant clause: ” 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, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) in any media formats and through any media channels.”

Gut reaction: Unacceptable. Take your valued video off YouTube. They can do any damn thing they like with it, for money or any other reason, and you can’t do a thing. I think the adventures of Pipey and The Tooth are soon to be only a memory to them.

Blip.tv
Relevant clause: “In addition, when you upload or post content to the Blip.tv site, you grant Blip.tv a license to distribute that content, either electronically or via other media, to users seeking to download it through the Blip.tv site or for purposes of other services provided by Blip.tv and to display such content on Blip.tv affiliated sites. ”

Gut reaction: Hmm. I’d be unworried were it not for two clauses. You do need to grant Blip a right to disseminate the video- otherwise how could anyone see it? But “either electronically or via other media”? What non electronic media does the blip.tv intend to use? I only want to agree to electronic dissemination. Also what is the definition of a “Blip.tv affiliated site”? Leaves us with questions.

Google Video

Relevant clause(s): “you are directing and authorizing Google to, and granting Google a royalty-free, non-exclusive right and license to, host, cache, route, transmit, store, copy, modify, distribute, perform, display, reformat, excerpt, facilitate the sale or rental of copies of, analyze, and create algorithms based on the Authorized Content”
“Nothing contained in this Agreement conveys any ownership right to Us in any of the Authorized Content, or other materials provided by You.”

Gut Reaction: “non-exclusive” is good. “modify” is concerning, but could be a technical term. Let’s let it slide for the moment. “Reformat” might be read as referring to a video format. Or it might be selling a DVD of Google Greatest Giggles. Otherwise I’d say that it’s not so bad. Particularly read in conjunction with the later clause. You’re taking a risk, of course, but it seems to be a lesser one than in the two examples above.

Grouper
Relevant clause: “You grant to Grouper and Grouper’s affiliates, representatives, and assigns an irrevocable, perpetual, non-exclusive, fully-paid, world-wide, royalty-free license, with the right to grant sublicenses through multiple tiers of sublicensees, to publicly display, publicly perform, distribute, store, transcode, syndicate, broadcast, reproduce, edit, modify, create derivative works, and otherwise use and reuse your Submissions (or any portions or derivative works thereof) in any manner, in any medium, for any purpose. Grouper reserves the right to display advertisements in connection with your Submissions and to use your Submissions for advertising and promotional purposes.”

Gut Reaction: And Your SOUL! Walk away. Worse even than YouTube.

Video Egg
Relevant Clause: “VideoEgg does not claim ownership of your Content posted, transmitted or otherwise made available by you via the Service. By submitting Content via the Service, and until such Content is removed, you grant VideoEgg a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish such Content solely for the purpose of providing the Service.”

Gut Reaction: I like this wording. They get a licence to do as much as you want them to do and no more.

Motionbox
Relevant Clause(s): “You retain your ownership rights to the User Content you upload to the Motionbox Website.”

“You hereby grant to Motionbox a non-exclusive, royalty-free, perpetual, world-wide, irrevocable, transferable license with the right to grant sublicenses through multiple tiers of sublicensees (including, without limitation, licensing your User Content to our Partners) to publicly display, publicly perform, distribute, store, transcode, syndicate, broadcast, reproduce, edit, modify, create derivative works, and otherwise use and reuse your User Content (or any portions or derivative works thereof) in any manner, in any medium, for any purpose.”

Gut Reaction: Looks good to start- reassuringly clear acknowledgement of your ownership rights. But then, after giving with one hand, Motionbox takes with the other. You may retain your rights, but to use the service you have to give them an irrevocable licence to do anything they want with it, including grant sublicences to anyone they please for them to do anything they want with it. Another one to leave on the shelf.

Revver
Relevant Clause: “In connection with your use of the Site, you hereby grant (or warrant that the owner of such rights has expressly granted) to Revver a worldwide, revocable, non-exclusive, sublicensable, limited right and license to use, copy, adapt (solely to permit Revver to conform and adapt your Content to technical requirements, including the right to adapt to streaming, downloading, broadcast, 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, your Content and any materials you submit to Revver, in whole or in part, whether created by or for you.”

Gut Reaction: A mid table entrant- the licence is revocable, which is vital, but they do seem to take rather more rights to themselves than they strictly need. And I’d be a little cautions about those wide-ranging rights being sublicenced.

Castpost

Relevant Clause: “By posting Content to any public area of the Castpost service, you automatically grant, and you represent and warrant that you have the right to grant to Castpost an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, reproduce, modify, display, and distribute said Content and to prepare derivative works of, or incorporate into other works, said Content, and to grant and authorize sublicenses of the foregoing.”

Gut Reaction: Don’t use this service. Don’t use any service that demands an irrevocable licence to do anything it feels like with your work.

Clipshack
Relevant Clause: “you hereby grant (or warrant that the owner of such rights has expressly granted) to Reality Digital a worldwide, perpetual, royalty-free, irrevocable, non-exclusive, sublicensable right and license to use, copy, adapt, publish, transmit, distribute, perform, display, reference, index and cache, in any form, medium or technology now known or later developed on the Site or the sites of Reality Digital’s affiliates, distribution partners or third-party service provides, your Content and any materials you submit to ClipShack, in whole or in part, whether created by or for you, to provide the Site, Services, and Content to you and to perform our obligations under these Terms of Use. Excluding your Content, you shall and hereby do assign to Reality Digital all right, title and interest in and to any part of the Site and Services that you may have or acquire. In addition, you warrant that all so-called moral rights in the Content have been waived.”

Gut Reaction: A challenge to Grouper for the worst licence of all the sites. I love the little kicker at the end that has you even waiving your ‘moral rights’. This is an immoral licence.

vSocial
Relevant Clause: “you hereby grant to vSocial the non-exclusive, fully paid, worldwide license to use, publicly perform and display such Content on the Website. This license will terminate at the time you remove such Content from the Website.”

Gut Reaction: Quite a respectable licence. The useage is limited to displaying the content only on this website and you can revoke it at any time by taking your content down.

Dailymotion
Relevant Clause(s): “the right to reproduce, without limitation of number, all or part of the Videos, on any medium, known or unknown, current or future, especially optical, digital, paper, disc, network, diskette, electronic, DVD, CD, CDI, CD-ROM, Internet, Extranet, I-mode, WAP media, etc, without this list being exhaustive; Dailymotion reserves the option to reproduce all or part of the Videos in order to make them available for other audiovisual or electronic communications Services.”
Note: This is only one of a number of rights you assign to Dailymotion with this licence.

Gut Reaction: Even if you didn’t go on to swap your rights for a handful of beans in later clauses the above ought to be enough to tell you that this isn’t a service you want to entrust your video to. The right to reproduce your video in paper format? Why do they need that? What will they do with it? More flipbooks, no doubt.


Treemo

Relevant Clause: “You grant HyperBoy a worldwide, nonexclusive, royalty-free, perpetual and fully sublicensable and transferable right…”

Gut Reaction: Look, I think we know this one by now. Do not accept any site which forces you to grant it a perpetual right to do anything. Another service to leave on the shelf.

There you go. If you have any other video sharing sites on whose terms and conditions you’d like a non expert, not-to-be-relied-on opinion let me know and I’ll try to add them.

UPDATE: Thanks to Gareth Stack, I’ve added a few more sites. I would point out that my rating is based entirely on their Terms and Conditions of Service. I’ve no idea if they are any good at sharing video or not.

UPDATED 26th September: Added Treemo. Let me know in the comment if there are any other sevices you’d like to see added to the list.

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17 Responses to Video Sharing Sites Terms and Conditions: A legal drive-by

  1. Fergal Crehan says:

    Not forgetting MySpace, who recently changed (or “clarified”) their policies following a tiff with Billy Bragg:

    http://www.theregister.co.uk/2006/06/08/blly_bragg_myspace/

  2. Pingback: Video sharing sites ToS reviewed » at Tom Raftery’s I.T. views

  3. copernicus says:

    Perhaps my strawman suggestion is a tad disreputable, although in its defence it was pioneered by eminent practitioners in the service of the great and good.

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  5. Simon McGarr says:

    Strawman defence might offer you a way around overly generous licencing agreements in the Terms and Conditions. But don’t forget that in many of the sites the uploader, your strawman, warrents that he or she holds the relevant rights. Thus,if you pursue youtube for breaching your rights they could counterclaim against your strawman. Leaving Wurzel Gummidge in a rather unconfortable position.

  6. copernicus says:

    I wonder. What would be the strawman’s liability to the site for breaching the warrant – the reliance of the site on the warranty? Where is the enforceable contract? YouTube, for example, would have to successfully argue that the provision of bandwidth was sufficient consideration (possibly but arguably not) for the exploitation licence it sought to assert.

    Great moot problem in all this.

  7. copernicus says:

    There might be a fraud angle but I imagine it would be very difficult for YouTube, for example, to assert that they rely on user warranties when their site is awash with blatant copyright violations by nearly every single user, which provides the lion’s share of the content they use to attract eyeballs.

    I’d say the fun is only starting with all this stuff. I’d advise starting to abstract principles now before all the moolah gets sloshed around.

  8. Pingback: Building a House » Blog Archive » Video Sharing Terms of Service

  9. Gary says:

    I think you are being slightly unfair on blip.tv, as their terms also include this phrase:

    “When you do remove your content, the license described above will automatically expire.”

    Blip is about the only service I feel comfortable using.

    Another worrying aspect of this is that several of these companies have changed their terms over the past six months. For instance, I am pretty sure that YouTube had the irrevocable and perpetual stuff. They can update their terms at any time and the user would have to prove which terms applied when the content was uploaded.

    Even the BBC has these terrifying terms:

    ‘you agree, by submitting your contribution, to grant the BBC a perpetual, royalty-free, non-exclusive, sub-licenseable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, play, make available to the public, and exercise all copyright and publicity rights with respect to your contribution worldwide and/or to incorporate your contribution in other works in any media now known or later developed for the full term of any rights that may exist in your contribution’.

    It is nothing less than a blatent attempt to build up a free archive of photos and video. People should say no.

  10. Gary says:

    Oops. YouTube has this too:

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

    What’s your view on this? Does it make them OK to use?

  11. Kieran says:

    Thanks, Simon. What a great and helpful post!

  12. Pingback: Tuppenceworth.ie blog » Treemo’s Terms and Conditions

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  14. Pingback: Tuppenceworth.ie blog » Video Sharing Sites Article- SBP

  15. Rose says:

    Blogcatalog.com now makes that same rights grab.

  16. Roy says:

    I’m trying to get my head around the legal implications of hosting a video sharing site.

    I’m contemplating adding a video sharing element to an existing site I have. I’d like to be in a position to give people who submit videos a share of any Ad revenue….

    Was wondering what would be the best legal disclaimer to go with?

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