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Comment by cwkoss | Hacker News Reader

If Phillip Bloom uploaded these videos to Youtube, didn't he consent to a broad TOS on the usage of these videos for internal company purposes?

I'd be surprised if he had a case, which may be why he's taking his grievance to the media instead.

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Well, ToS are rarely to be taken at full value. It obviously differs between countries, but in many countries, ToS cannot override the law, or might even already be invalid, if they contain things that a customer can not reasonably expect to be in there. So, no selling of souls through ToS.

Similarly, it is perfectly valid to take your grievance to the media, if the ToS contain such bullshit. Almost no one reads the ToS, so a company asking you to sign off your rights in it, is an asshole company that deserves shaming.

A casual home user sure, but this is a professional commercial film producer. This can hardly have been the first time he'd had to deal with contractual distribution rights. If anyone should have been able to understand the consequences of that EULA, he's clearly one of them. However it does seem this usage was not covered by the EULA.

I suspect this is more of a PR issue than a legal one. Google might not want too many youtube users than necessary realizing what they lose by posting their videos on youtube (you kind of still own it, but we can use your video pretty much any way we want, too). Too many unhappy users invites regulation

As another example, many record companies upload very popular music artists to youtube. Also large media companies such as disney upload their songs and animations. If google turned around and started selling these for a profit, we would all conclude google was getting a bit ridiculous.

In fact, you could say that the lawyers from these companies quite rightly determined that google's TOS are legally unenforcable and go against the spirit of the law.

Bingo.

https://www.youtube.com/static?template=terms&gl=US

From section 6c:

"For clarity, you retain all of your ownership rights in your Content. However, by submitting Content 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 Content in connection with the Service and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels."

Heh, Facebook has(had?) a similar clause which pretty much drove the photography community away to Flickr and the like.

I thought the photography community was driven to flickr because they were offering higher resolution and better quality.

Instagram has the same clause too

So does the free photo backup hosting which comes with Amazon Prime, iirc.

A friend who's a (mostly) retired semi-pro photographer has all his photos automatically uploaded there, so that clause worried me a bit.

If he is a British/still EU citizen, this part of "terms" might be worth the value of white noise.

Citizenship doesn't affect things. Place of residence does. If he lived in the US (or other non-EU country), then there's no way to claim any EU jurisdiction. (In this specific case: it looks like he does live in the UK.)

Similarly for GDPR, it's not much use for anyone living in the US, even if they have EU citizenship, if they sign up for services while in the US.

That is highly dependent on the law. For example the United States will prosecute citizens that have sex with child prostitutes in other countries, even if that is where they reside full time. Other laws like the GPDR you mentioned are dependent on the physical location of the activity

In both the UK and the US, the legal systems have a strong presumption against that interpretation for laws which don't say otherwise.

The example you give is one where Congress made clear they intended it to apply to citizens abroad, so the courts honor that.

(As for the US Constitution, it is held to protect the rights of US citizens abroad in relation to the US government, to the extent the US government knows or should know of their citizenship.)

>Citizenship doesn't affect things. Place of residence does

This depends. E.g. IRS and tax laws that apply if you're a US citizen regardless of residence.

But that's beside the point, because when the parent said UK/EU citizen above, he implied residence as well, which is the case for 95% of them, he wasn't addressing every specific case.

So, basically you retain your ownership rights, but grant YouTube all rights that (co-)ownership would grant?

Not quite because they can't transfer those rights to others.

I've got no problem with the Youtube rights. They need to be able to store and distribute the content you upload on a variety of media, through a variety of formats and to all sorts of end user devices and services in perpetuity, many of which haven't even been invented yet. Any thing less than these rights they reserve would almost inevitably lead to them breaching those terms eventually.

That's why the rights should be granted for the purpose of performing the service, and nothing else.

In other words, take "in connection with the Service and YouTube's business", and cut everything from the "and" on.

The grant is "sublicenseable and transferable".

This is why I didn't let Google index my podcast. Other sites just ship your RSS, Google insists on hosting your podcasts and granting itself a license to them.

That does not seem relevant? You are certainly not giving them a license to do whatever they want to do with your content just by hosting an RSS index of mp3 files on the web.

iTunes merely directs users to your podcast RSS feed and lets people download podcasts from your servers. As far as I can tell, they do not require you agree to any licensing terms, and as an RSS reader that simply lets users pull the podcast from your servers, they never "perform" the audio work or modify it in any way.

Google, on the other hand, hosts your podcast, and requires you to agree to this:

Podcast Creator grants to Google all rights necessary to use the Podcast Content in connection with Google Play, in search results and in Google Now in accordance with these Podcast Terms, including, without limitation, a worldwide, non-exclusive right and license to (a) make copies, transcode, download and store on Google’s servers or servers controlled by Google all such copies of the Podcast Content, including any files that are linked to or referenced by the RSS Feed that is provided by the Podcast Creator and as may be required to distribute the Podcast Content to users as described herein, (b) reproduce and distribute Podcast Content to Google Play users, including via download to a user’s device and as a part of a subscription; (c) encode, transcode, stream, make publicly available, publicly perform and distribute copies of the Podcast Content, including the right to provide continued access to any Podcast Content to any users who previously downloaded a copy of that Podcast Content even if the content has been removed from the RSS Feed, in order to facilitate that user’s permanent ability to access the Podcast Content as authorized by these Podcast Terms; (d) analyze, extract and process content and Metadata from the Podcast Content in order to distribute such content on Google Play and (e) use the Podcast Content for internal research, development and copyright measures such as content identification.

What do you mean, requires you to agree to something?

I don't get how this applies to something you self-publish on the internet.

Perhaps you can clarify what's confusing to you? Generally speaking, if you want people to find your podcast, you list it in say, iTunes, or Google Play, so people can find it in their app of choice.

iTunes does not require terms, Google Play does.

IANAL but I'm not sure that clause applies to this case. From the article it wasn't a Youtube executive who used the footage but someone from Google's research division.

Also that clause appears to apply to Youtube using content from the site to promote Youtube's service(s) and not for content entirely unrelated to Youtube but to Google's wider interests.

I think that's the catch, and Google (or their lawyers) are trying to interpret it more broadly than it appears to be. I also took it as Youtube could use the videos for promoting the Youtube service, but other Alphabet properties don't fall under that ToS.

Then again I'm not a lawyer so I could be completely wrong. Hopefully this gets sorted and the guy gets properly compensated. It's not like Google can't afford it, and it would be positive publicity for them. Of course, it could also set a precedent and they would face lawsuits from other content creators, so I can understand their desire to fight it.

> Also that clause appears to apply to Youtube using content from the site to promote Youtube's service

I'm not sure about that. The preceding statement of "including without limitation" to the mention of promotion seems like Youtube et al can use your content for literally anything they want. However, if that's the case then why bother including the mention of promotion and redistribution at all?

Looks like it's kinda up to the courts how to interpret it, but, also, it looks like your logic is valid with it being more restrictive than permissive.

"First, some courts have held that an item only falls within the preceding noun if it falls within one of the items in the list. The thinking is that if the preceding noun were being used to convey its unrestricted meaning, referring to subcategories of that word would serve no purpose. See, e.g., Application of Central Airlines, 185 P.2d 919 (Okla. 1947) (holding, with respect to use of the word including, that “if the lawmakers had intended the general words to be used in their unrestricted sense they would have made no mention of the particular classes”)." [1]

[1]: http://www.adamsdrafting.com/including-without-limitation/

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