Youtube

Mark Miller: 

I tried to read through the terms of agreement for YouTube. And there are so many external links in these documents, even to the point of pointing you over to the Google Privacy Policy, which has its own 10 major sections. There’s obfuscation going on here on purpose

I tried to read through the terms of agreement for YouTube. There’s obfuscation going on here on purpose.

Joel MacMull: 

I agree with you wholeheartedly. First of all, let’s talk about where the terms and conditions appear on the YouTube page, which I would submit to you, is not for nothing. If you go to youtube.com and you look at it, you’ve got all of these tiles and you’ve got all of these various links on the left hand side, shorts, library, your movies, and tv.

You’ve gotta scroll all the way to the bottom in which they have terms and conditions hyperlinked within a whole bunch of other hyperlinked one word phrases such About, Press, Advertise, Developers, Terms, as well as a plug for NFL Sunday ticket, which if you’re an NFL fan, I understand as a YouTube subscriber, you’ll be eligible to enroll in later this spring.

Mark Miller: 

Let me jump in, Joel, because I just did what you just said and I didn’t realize I had to pop the menu open. So as I was looking for the terms of agreement on the YouTube page itself, it’s an infinite scroll. You can never get to the bottom of the page, and that’s where most of that stuff usually is, is in a footer.

That’s right. So what you just said is you had to expand the menu at the top of the page on the left hand side, and that’s when I saw it at the bottom finally. 

Joel MacMull: 

That’s right, that’s right. And it took me a few minutes because you’re absolutely right. As an internet lawyer, I’m pretty fluent with, you know, getting to terms and conditions pretty quickly, and in fact, one of the things I find it can really be difficult sometimes to find out what’s the name of the company. And almost immediately I’ll jump to terms and conditions or privacy policies because if they’re fully compliant, you’re going to have a disclosure there.

You’re going to have a disclosure that ABC LLC operates one-two-three.com and that can sometimes be difficult information to collect, at least elsewhere in the website. 

If you look at the terms they give you a sort of index mm-hmm of terms of service, paid service, terms of service, community notices, and all of these, of course, are separately hyperlinked. They are not accessible from just scrolling down on the right hand side. , If you go to Privacy… 

Mark Miller: 

Privacy is the one that set me off. It’s like I just threw up my hands.

Joel MacMull: 

Right. And it, it takes you back to the parent company, Google, and all of its various permutations, which it offsets with some cutsie graphics, but there’s no way that a reasonable person would have either the time or the inclination to look through of all this… 

Mark Miller: 

But you and I are not reasonable people and that’s…

Joel MacMull: 

No, We’re not just ask my wife…

 Let’s at least for purposes of at least this portion of the discussion, let’s parse YouTube from Google because they are really different animals. But I think getting back to this, like where does it end, sort of notion that you and I have come up with as we look at these policies, if one goes to youtube.com/t/terms, you’ll see the terms and conditions for just YouTube.

But one of the things that I think is ridiculous, and it does sort of dovetail with some of the licensing that we talked about, I think in the context of ai, uh, during one of our most recent conversations, this is their policy with respect to open source, which I thought as a software developer, you’d find interesting.

“Some software used in our service and service is defined as the YouTube service, meaning the uploading of videos and the viewing thereof may be offered under an open source license that we make available to you. There may be provisions in an open source license that expressly override some of these terms, so please be sure to read those licenses.”

Mark Miller: 

It’s so polite. 

Joel MacMull: 

Okay, where are those licenses? Even if we’re endorsing, which we’re not, this sort of infinite hyperlinking on these terms, where are those licenses? Where would you suspect that I’m now going to be able to read the licenses that impact your open source software utilized in your service?

Mark Miller: 

Well, just not that though, Joel. Not the licenses itself. It’s which open source components are you using? What are you using, youTube, as open source? Then I, as a developer or an operator, I can determine the licensing if I know what you’ve got in your software. 

Joel MacMull: 

Fair enough. I don’t disagree with you and by the way, we’re talking about a version here of YouTube’s terms that were last updated. So it says on January 5th, 2022. So they’re a little more than a year old now. 

Mark Miller: 

It’s one of the things that the government has jumped into recently, and that’s the idea that everything that the government uses now, they’re going to mandate an sBOM, a software bill of materials. And in order to determine the licensing that they are asking us to take a look at, politely, we have to know what’s in the software itself. And that’s the catch here. There’s no possible way we know what open source YouTube and Google are using 

I’m gonna tell you right now. There ain’t no way.

It’s just absurd. That statement on its face is just absurd. 

Joel MacMull: 

You know what, Mark, you know what we’re going to do, we’re going to start a grassroots campaign right here, and you and I are going to get our congressman hopefully. Do we have the same congressman? I don’t know if we can talk about that offline. But we’re going to get a bill sponsored where Congress is going to put into place, that there needs to be a fair disclosure.

There needs to be, at least as it relates to technology companies in the grand scheme of things in which are using your data, so that certainly would encompass all the social platforms, and I don’t care whether that data is text, whether that data is video. I want a succinct single document where I can read what the terms of service are, and insofar as they may also implicate privacy issues, which they do, I want that laid out for the average consumer in a way that is, accessible and digestible.

That’s become my personal mission. I invite you to join me in, campaigning for this. The more I look at these, the more I shake my head and just think to myself, do our representatives know what’s going on here? 

Mark Miller: 

What’s going to happen here, Joel, in all seriousness, if that is the outcome of this show, then we’ve served a real purpose because there isn’t any possible way to do what we’re being asked to do as consumers. It’s literally impossible. So if the outcome of this show is to actually mandate the terms of agreement and how it has to be presented, so be it.

Joel MacMull: 

you know what my measure is, would my mother and father be able to figure this out? That’s my measure.

Mark Miller: 

All right, so we’ve had a little fun poking stick in the eye of the entire industry, but I’ve got something specific for YouTube, which I think is fascinating.

A line that I read in the YouTube terms of agreement is you are not allowed to download videos. And I’ve seen, my goodness, I’ve seen dozens of browser plugins that do just exactly that. There’s absolutely no way I can see this as enforceable.

Joel MacMull: 

This is to be distinguished, of course. From embedded links. 

Mark Miller: 

Yes. This is, I want to have that on my hard drive. Okay. And I’m wondering where is the enforcement on that, if it’s enforceable at all?

Joel MacMull: 

I think you make a fair point: that which may be written may be very different to the extent to which the company wants to enforce. Understand that this is a mere reservation of their rights to enforce and may not just be possible.

In addition to reputationally, there may not be a desire to do so because you could imagine that if in fact someone like YouTube owned by Google started doing this, what kind of backlash would they get? That’s one of the things that these big companies, I think, are constantly needing to be conscious of.

Mark Miller: 

But remember when Napster was out and one of the things that the music companies were saying was that if we don’t enforce it every time we see it, we think it becomes unenforceable because we haven’t, whatever the legal term is, I’m sure you’ve got. 

Joel MacMull: 

In the age of Napster and Limewire and I was involved in some other more esoteric kind shareware platforms. There though, it was different though, because they were talking about their own properties. Remember, Napster ran afoul of the fact that recording artists were not earning royalties from the downloading of music. That was the threat. And so you had ASCAP and the other licensing, chiming in here and say, no, wait a second.

It’s a revenue stream that they themselves were being denied. Okay. But so were the artists on behalf ostensibly they’re working for. It was a little different, but yes. The concept that you’re talking about is absolutely, it’s one of contract. Which is that if you are going to say that you have a right to enforce and you don’t, then at some point you give up your rights of enforcement by virtue of not policing that which you’ve put the world on notice that you’re entitled to police. 

Contracts of all kinds will have a provision that says something to the effect of the failure of a party to enforce any provision in this contract shall not constitute a waiver, blah, blah, blah, blah. And shall not be used against the parties who hasn’t enforced the ability to enforce any other provision in this contract at any other time. That’s fundamentally what that is designed to protect. 

Then the question becomes, even with the presence of such language, is the contract still enforceable? And frankly, that’ll turn on facts and circumstances as much as it might turn on the judge who’s looking at that and whether or not that is enforceable or not. 

Mark Miller: 

The next one I’ve got, which I really almost had to laugh out loud. I put it in my language, not theirs. But you can’t hold YouTube libel if you do dumb shit following instructions on YouTube. Like if you lick a frog or you cook with poison or whatever.

Joel MacMull: 

By the way, I know sometimes that from a policy perspective, we may disagree on that. I think that’s right. I think the real interesting case, we talked about, Section 230 of the Communications and Decency Act, which was being reviewed just the other week by the Supreme Court.

This is one of those examples. When the internet was in its nascent form in the early to mid nineties, Congress passed a bill that said that the provider of the forum in You shall not hold me liable because someone decides to get onto YouTube and to your point, starts taking a bath in hydrochloric acid. 

I do, I think that’s right. Do I think there are possible exceptions to that based on the egregiousness of the conduct that arguably should YouTube, whether it’s automatically or through some sort of, I guess it would have to be a bot realistically, given the number of uploads. But is that always hard and fast the case?

The problem by saying no, which is what I’m inclined to do from a policy perspective, is where do you draw the line and how do you give YouTube and other content providers, reasonable bounds by which they can operate? 

If you’re gonna set limits, they’ve gotta be clear and understandable, and I’m not sure I know what they are. I suppose this is the price we pay at the margins for the benefit of these sorts of websites. 

Mark Miller: 

Here’s the real issue for me in real time. As we’re looking at YouTube and you find egregious videos on YouTube, like Call to Arms January 6th, they’re call to arms and YouTube knows it’s up, but they don’t take them down because we’re just a platform.

 Where is that headed now? There has to be some kind of repercussions. 

Joel MacMull: 

That’s a great example. It presupposes of course, that you are condemning the acts of January 6th. This is exactly why 230 is such an issue. Are there circumstances in which, if the algorithm is specifically promoting videos, is that akin to content generation? 

Mark Miller: 

That’s right. So the algorithm is actually putting this stuff in front of people when they normally wouldn’t see it. 

Joel MacMull: 

That’s certainly the argument. I guess my question is, why is the algorithm identifying these nefarious videos as being something that this particular viewer would be interested in? 

Take for example, the user on YouTube, who just wants to see something gory or wants to see someone burn with some sort of corrosive acid and they watch that video. They, in turn get, I don’t know, socialized or desensitized to the idea that a corrosive acid could burn human flesh.

And they now either they decide to hurt themselves or worse, they hurt a third party. And they go out and they buy this corrosive acid, or they make a batch of corrosive acid from some very basic components that they buy at Home Depot, and they go out and they throw it on their worst enemy. and let’s make this person 21 or 22 at a college or pour it on their ex-girlfriend who they’re really upset at.

 I mean, I would submit to you that there are places certainly in the world, if not this country, where similar facts and circumstances have played out. My point is, if the internet plays a role in that, can a plaintiff’s lawyer not in turn point back and say, where did this person get this information from? To what extent was social media in some way or another promoting this message?

Mark Miller: 

That’s a good line of distinction on that one. 

I want to read something to you here about YouTube’s right to monetize, which I just laughed when I read it. It said…

Joel MacMull: 

I think I know what you’re gonna read. This was, this stuck out at me too…

Mark Miller: 

We’re gradually starting to serve ads, well, that’s an understatement, on a limited set of, brand save videos on channels, not in the YouTube partner program, and not under the monetizing agreement. Here’s the kicker line. There won’t be revenue share for these apps. 

It’s like YouTube saying, you’re shit out of luck. We’re taking all the money on this and we’re telling you upfront we’re going to do it. 

Joel MacMull: 

This agreement does not entitle you to any payments starting November, 2020. Any payments you may be entitled to receive from YouTube under any other agreement between you and YouTube, including, for example, payments under the YouTube partner program 

Mark Miller: 

Which I have no idea what you just said, it’s almost circular what it just said. 

Joel MacMull: 

At one time, I remember for example, that popular South Korean song, Gangam Style.

It’s one of the earliest YouTube sensations that I remember. 

Mark Miller: 

It was the first one that went over a billion, I think a billion. 

Joel MacMull: 

And I remember the revenues that the artist in Korea or whatever, was generating like through the roof. Listen, it’s not lost on me.

 But it also seems like the choice of language again, that I’m looking at it, well, we’re not gonna treat it as royalties instead of a partnership sharing program. And that suggests to me, without knowing anything more, that the partnership program, or at least the language they were using, Suggested that there was some sort of like joint venture or equality in the partnership, whereas now they’re treating it more as royalties, which is there’s a recognition that there may be some IP to which you are entitled, but we’re moving away from the concept of partners. And to the extent that we’re gonna pay you royalties, it’s gonna be consistent with, I guess there’s gotta be somewhere else on here or through a hyperlink, whatever the royalty structure is. 

So using Gangam Style as an example, you hit a hundred thousand, you hit 500,000, you hit 5 million, 10 million, a hundred million, a billion. There will be a schedule by which you will be. And we know that because it says, oh, no, by the way, uh, if required by law, and this would be required by, I guess, the various national laws depending on where you reside, right? If I’m in the United States, I’ll be taxed. 

Mark Miller: 

The interesting thing there, Joel, for me, is you saw this happen 10 years ago with affiliate programs, those were first set up as partner programs. Sure. And exactly what you just said. The terminology insinuates, that there’s a mutual agreement, a partnership, as opposed to one company paying royalties or fees to another company. 

When we’re reading through the terms of agreement, and you’ve got your eye on this, I think from a legal aspect, you’re looking at copyright and take down notice. 

Joel MacMull: 

I’m looking at, well, I, I suppose the way I would look at it is, what, what is that issue?

Is it at my, is it my client’s content or is it the allegation that my client, in the event that I’m sort of in a defendant’s posture, is being alleged to have infringed somebody’s content?

Mark Miller: 

What is YouTube saying then, as far as takedown. 

Joel MacMull:  

If you get a takedown notice, they have to immediately take it down. I’m giving you the very high level version, they have to put the recipient on notice. Hey, A, B, C, we’ve received a takedown notice from X, Y, Z.

If X, Y, Z is at all interested in the content, X, Y, Z will tell Google or anyone else, any other provider, “No, no. You’ve got it wrong. That really is my own content.” At that point, there’s sort of a call in response, and all of these platforms do the same thing. I think we encountered this maybe in TikTok where they say, yeah, we’ll take it down, but then the other side has a response and if their response says, no, no, it’s ours, we wash our hands of it and we leave. 

Mark Miller: 

Yeah, but that’s backwards. That’s backwards. That’s like getting swatted. I don’t like that Joel said this on his video, so I’m going to report that, that’s my content. That’s nothing but a SWAT team… 

Joel MacMull: 

well, you’re, you’re right. I mean some, in some cases, yes. Now there’s actually, there, there is a provision in the DMCA 

It’s under 4 0 1, I think it’s called basically a bad faith takedown, and it accounts for something like that where your takedown effort is actually an outgrowth of you not liking the content, right? The most classic example being something’s defamatory or something, and you initiating a bogus copyright takedown.

This is not perhaps the most vigorously litigated provision, but I’ve been involved in these cases where you basically allege a wrongful take down. you lay it out and you make your claim and it finds its way most often as a counterclaim, 

Mark Miller: 

A real world case of this could be, and we’re saying hypothetical here, Will Smith doesn’t.

The show that Chris Rock just put on a Netflix, so he hits up YouTube and says everything that Chris Rock does that mentions Will Smith, I want taken down. 

Joel MacMull: 

Under the premise that it’s a copyright violation, right? I mean, that’s what you have to, you have to make the argument that the content at issue in the video, 

Mark Miller: 

I’d say it was defamatory. that’s what I would be going for. 

Joel MacMull: 

It’s a question of degree. They’re going to say, well, your content shall not incite violence or hurt feelings, or whatever it is. And then it all becomes a matter of degree. Who’s the one at these institutions measuring whether the contents will incite hurt feelings, let’s say, to keep it, to keep it particularly amorphous.

 That’s not a copyright violation. I mean, it may give rise to other claims, defamation among them, but then again, we go back to Section 230 because the platform is not responsible for defamation. 

There is no federal claim for defamation. But what is like it? Well, trademark, infringment. We’ll have to see what Section 230 looks like come the end of June when the Supreme Court basically shuts down for the term. 

Mark Miller: 

I want to remind people that you’re a lawyer, but you are not their lawyer. 

Joel MacMull: 

…at least not yet.

Mark Miller:

Thanks for joining us for this week’s “You’re kidding me… that’s in my EULA??” We’d appreciate your comments on today’s show page, located at WhatsInMyEULA.com. You’ll also find information on how to get in touch with Joel. While you’re on the page, tell us what other EULAs we should investigate. If we use your suggestion, we’ll give you a shoutout in that episode.

“That’s in my EULA??” is published weekly. Special thanks today to Katy, that’s with a ‘T”, Kadi, that’s with a “D”, Edwin, and Tracy for the awesome voiceover work at the beginning of the show. Music today is provided by Hash Out from Blue Dot Sessions. 

We’ll see you next week.

This was a Sourced Network Production.

If you’re interested in talking with Joel about some of the issues in this episode, shoot him an email.

Joel G. MacMull | Partner
Chair, Intellectual Property, Brand Management and Internet Law Practice
(973) 295-3652 | JMacmull@mblawfirm.com