Hacker News Reader

Comment by schoen | Hacker News Reader

Is it clear that CC licenses require sites to make it clear how to save a copy of a work? While there is certainly anti-DRM language in the CC licenses, is there something specific in Google's implementation of YouTube that directly conflicts with the provisions of the licenses?

(I support making it easier to save copies of things, but I'm not sure about the license compliance theory.)

View on HN

By uploading a video to YouTube you are giving them a special license to distribute the video. The license you choose in the video description doesn't apply to them. The title is incorrect in saying there is any kind of violation here.

Well, this is a reason why YouTube itself may not be liable (if its practices were actually inconsistent with the CC license requirements), but a CC licensor could still file takedown requests to YouTube or lawsuits against another person who reposted a CC-licensed video on YouTube. If the CC license didn't permit YouTube's practices, someone who's not the copyright holder wouldn't have been entitled under the CC license to grant YouTube the license they purported to.

And that's the important bit here.

A CC license doesn't give you the right to award Google all the rights it demands in Section 8 of the YouTube TOS. To try to do so violates the CC license, terminating your original agreement. Yeah, breaking a license term makes you liable.

Just to restate it, it is illegal to upload content to YouTube under a CC license because it's instantly an infringement. Of course if you have separate permission (or its yours) that's okay but that's not a CC license, that's a dual-license to you.

This is really common with user-submitted-content sites. Equally common is users not understanding this fact. Or caring.

Google has safe harbour. This is their users actions... But they {c,sh}ould be doing more to interrogate uploaders about the material source and licenses. Instead they just seem happy to let the DMCA do its work.

In the YouTube TOS: https://www.youtube.com/static?template=terms

5. Your Use of Content

...

> You shall not download any Content unless you see a “download” or similar link displayed by YouTube on the Service for that Content.

Which seems contradictory with CC, and what is the next sentence:

> You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of YouTube or the respective licensors of the Content.

(I'm not a lawyer and whatnot.)

The CC license [looking at CC-BY 4.0 from https://creativecommons.org/licenses/by/4.0/legalcode] says

"You may not offer or impose any additional or different terms or conditions on, or apply any Effective Technological Measures to, the Licensed Material if doing so restricts exercise of the Licensed Rights by any recipient of the Licensed Material."

Perhaps the YouTube ToS provision against downloading could be viewed as "additional or different terms or conditions".

For the second sentence you quoted, I'd expect that YouTube users already have the "prior written consent of [...] the respective licensors" expressed in the CC license itself, because "[e]very recipient of the Licensed Material automatically receives an offer from the Licensor to exercise the Licensed Rights under the terms and conditions of this Public License".

Wouldn't the onus be on the person distributing CC-licensed material to a host with a CC-incompatible terms of service?

I addressed this below at https://news.ycombinator.com/item?id=12103061

It's hard to see that someone can hold YouTube liable for this violation; presumably YouTube is protected by §512 of the DMCA for uploads that violate Creative Commons licenses just as much as it is in other copyright disputes. A copyright holder in a CC-licensed work that someone else uploaded to YouTube could file a DMCA takedown notice or seek damages from the uploader.

YouTube has produced a bunch of educational material about copyrights and how to avoid violating people's copyright. I think a super awesome outcome would be if YouTube started prominently publishing educational materials that made clear that YouTube is too restrictive a place to host third-party CC-licensed videos, and that users should upload them elsewhere to avoid violating the CC licenses.

That term doesn't make sense. Streaming a video involves transferring portions of it to your computer. Some portion of the video has to be present in memory on my computer in order for me to see/hear it, which means that the act of watching a video necessitates making at least a partial copy.

You could claim that there's a difference between holding the data in RAM and holding it on disk, but all modern consumer operating systems support virtual memory, which means they can use the hard drive as an extension of RAM if needed. That would mean that it violates the terms of service to watch a video while doing something memory intensive, which could cause portions of the video to be automatically transferred to disk.

I'm not a lawyer, but I question whether this term could be enforceable.

There are sections that address this:

4. C) You agree not to access Content through any technology or means other than the video playback pages of the Service itself, the Embeddable Player, or other explicitly authorized means YouTube may designate.

and

5. C)You agree not to circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.

Reply on news.ycombinator.com