Legal liability of YouTube viewers

Updated 5/19/08 with RealPlayer comment (see below)

Users of YouTube and other video-sharing sites could face penalties of $750 per clip if they watched a video that was uploaded without permission from the copyright holder.

Copyright Infringement in the United States Strict Liability Infringement. This means that users are liable when they illegally copy works, even if they do not know it is wrong or the work is copyrighted.

As an example, consider the popular video sharing website YouTube.

Every week, 6 days after the show airs, HBO uploads the most recent episode of “Real Time with Bill Maher.” However, hours after the show aired on TV, a number of other users uploaded copies they recorded with their computers.

When a user visits YouTube and searches for “Bill Maher”, they will see a large number of results – some of which will be for official content uploaded by HBO, and the vast majority of which are copyrighted content illegally uploaded by other users.

Based on a close reading of copyright laws and discussions with legal scholars, users could unknowingly be held liable if they click on the wrong YouTube link. The fact that they do not know that a video has been downloaded illegally is irrelevant. All that matters is that they clicked on a link and watched the video.

For BitTorrent websites like The Pirate Bay, where the vast majority of files are illegal, it’s at least semi-reasonable to expect most users to know they’re engaged in an illegal act. However, for sites like YouTube, where both legal and illegal content are available on the same platform, it’s much more complicated. How exactly are the less savvy among us supposed to determine if a file is legal to watch?

copy traps

The issue of unintentional home user liability is the topic of a recent article by Ned Snow, professor of law at the University of Arkansas. In “Copytraps”, Professor Snow argues that copyright law unfairly exposes end users to significant liability for actions they have no reason to believe are illegal.

Professor Snow offers the following example: A user visits Google and searches for the name of a band he likes. One of the first results takes them to a website, named “legal-music-downloads.com”. Once there, the user hands over their credit card and pays $0.99 per song to this unknown website. Now imagine that “legal-music-downloads.com” is actually a scam website run by a few guys in Eastern Europe. They download files from BitTorrent and then illegally resell them to US consumers.

As Professor Snow describes, the fact that the end user believed that he was participating in a legal purchase is irrelevant. All that matters is that they copied (downloaded) a copyrighted work, which was not sold through legitimate means. This user could be liable for up to $750 per song.

It may sound crazy, but it’s totally possible with the existing system. Yes, the RIAA and MPAA have so far prosecuted file sharers. However, nothing in the law requires them to stick to just these users. They are also legally allowed to sue downloaders.

Experts answer

To make sense of this, I turned to a few other copyright experts. First, I spoke with Corynne McSherry, a staff lawyer at the Electronic Frontier Foundation. McSherry told me that the scenarios I described were not beyond the imagination and entirely possible under current copyright law.

As an example of copyright owners suing downloaders, she pointed to a 2006 attempt by the Embroidery Software Protection Coalition to obtain the identities of all participants in an online embroidery discussion forum. In support of their claims, the Coalition compared stitchers’ online screeds to “terrorist activities” and accused them of publishing defamatory statements “which paraded on Internet bulletin boards and chat groups similar to Hitler’s march through Europe”.

The Embroidery Coalition, following tactics similar to those of the RIAA and MPAA, threatened grandmothers with legal action for downloading copyrighted embroidery designs from the Internet. These little old ladies were given the choice of paying a few hundred dollars or facing a lawsuit.

Fortunately, EFF lawyers were able to get the Coalition to back down, but at least it proves that if left unchecked, copyright law can be used to prey on end users.

EFF’s McSherry told me that the penalties under copyright law were “not like many other areas of law where you have to show prejudice.” Thus, illegally copying a song sold for $0.99 on the iTunes Store can still result in a fine of $750 per song. McSherry called this “completely disproportionate” and said that because of this, “for ordinary people, who don’t have thousands of dollars, the tendency is to settle (cases) rather than fight” .

YouTube users at risk

While Professor Snow focuses on the example of lying websites, I’m personally much more interested in the liability of users of major sites like YouTube.

Sherwin Siy, a lawyer from Public knowledge, told me that my fears about YouTube might be overblown. Siy points out a difference between downloading a video and streaming it. He told me that “arguing that a buffer copy (for streaming view) is a duplication is even harder (battle), and the potential rewards might not be worth the attorney’s fees.” He added that “merely watching a video on your screen, whether authorized or not, will not constitute an offense unless you perform it publicly or copy it.”

Siy also noted that copyright law allows for a reduction of $200 per labor penalty for infringement, if the pirate can prove they had no reason to believe they were infringing.

Update:

Siy clarified his point in a follow-up email: “For example, if my affiliated local TV network aired an infringing copy of a TV show and I had to watch it at home, I certainly wouldn’t be liable. The idea of ​​the copytraps might come into play if I had (albeit innocently) recorded or DVRed the show.”

While Siy makes some good points, I’ll have to disagree with him on the issue of viewing versus downloading. There are many ready-made tools that allow users to download YouTube videos. The most widely deployed of these is RealPlayer, which done automatically allows the user to do a local copy of every YouTube video a user watches. YouTube has no way of knowing if someone is streaming or downloading a video – because it’s just transferring bits over a wire. If the RIAA or MPAA subpoenaed YouTube logs, they couldn’t tell those users apart either.

YouTube location

A few years ago, a number of big companies started threatening Linux end users with patent lawsuits. In response, one or two Linux companies shielded their customers from such lawsuits. In other words, buy Linux from us and we’ll cover all potential legal fees.

Thinking along those lines, I reached out to YouTube to get their perspective. I wanted to know if they would offer to pay the bills of sued users after watching a video on their site. I also wanted to know if YouTube had ever leaked a list of infringing viewer IP addresses to a copyright holder.

The YouTube spokesperson ignored my real questions and instead told me that:

We prohibit users from uploading infringing material, and we cooperate with all copyright holders to promptly identify and remove infringing content upon official notification to us.


As a company that respects the rights of copyright owners, we hope to continue to lead the way in providing industry-leading DMCA tools and processes to all copyright owners.

While end-user liability remains unclear, there is certainly a risk of nasty lawsuits if copyright owners decide to go down this route. In a conversation with me, Professor Snow described a scary future with Copyright Trolls delaying sending takedown letters to websites, so the number of infringing users (which the company can then sue) will increase.

A scary future indeed.

Update: Jeff Chasen, a vice president of RealPlayer, contacted me to let me know that I had made a mistake in my original blog post. He told me that:

RealPlayer does not automatically download or create local copies of videos from YouTube. RealPlayer 11 offers users the ability to download the video they are watching, but it requires the user to click a button to initiate the download. No copying or downloading takes place until a user explicitly performs an action.

I stand by my point though, which is that YouTube (and any copyright holder that gets a list of views/downloads via a subpoena) has no way of knowing when a user is watching a video and when a user downloads via a RealPlayer tool with a single click.

Shirley K. Rosa