Is a public library film festival via YouTube legal?

May 4, 2009 4:40 PM

I would like to put together a playlist of short films posted to YouTube and show them for a group of kids at my public library. Legally, can I do this?

I am planning to use only original films that have not a whiff of copyright infringement about them and that are content-appropriate. However, I'm having trouble figuring out whether this is OK according to YouTube's Terms of Service. Lots of info about the API and the actual content of the videos...nothing about public performance/showing as far as I can tell.

Normally I'd just go ahead and do it, but I'm new to this job, my information law class was several years ago, and I really don't want something (even a minor something) to bite me in the butt after the fact!

Thanks in advance for your help.

posted by Knicke to law & government (12 comments total)

Check the YouTube Terms and Conditions.

Section 4.D says "No commercial use", but, interestingly enough, doesn't explicitly rule out charging admission to show YouTube videos (although you do have to use the YouTube player to show them).

Section 5 has more restrictions and limitations, including "Informational and personal use" only (5.B), but then goes on to talk about downloading. There are no explicit statements that say public performance is forbidden.

I'd say it's probably ok, as long as you're not charging admission, which might be construed as commercial activity.
posted by djfiander at 7:09 PM on May 4

I can't find any place in YouTube for a content creator to set their license. I did, however, find this in their Terms:

5.A is pretty nasty, but it refers only to the non-user-submitted content.

5.B is less growly, but it does claim to limit usage of user-submitted content to "personal use."

Elsewhere, the terms prohibit any uses not specifically granted in the document.

In short, I don't think YouTube's terms of use allow the kind of public performance you're suggesting, even if you don't charge admission. To do that you'd need a performance right, and the terms don't grant it.
posted by misterbisson at 7:29 PM on May 4

Section 5.D is the killjoy:

You may access YouTube Content, User Submissions and other content only as permitted under this Agreement. YouTube reserves all rights not expressly granted in and to the YouTube Content and the YouTube Website.

Because the terms don't expressly grant any public use or performance....
posted by misterbisson at 7:32 PM on May 4

If you are doing this under the auspices of a public library (not just at a public library), you may find Google, Inc. willing to grant permission.

Just because the default terms and conditions don't speak clearly to your desires doesn't mean that they won't give you formal performance permission. I'd address both their main corporate contact as well as their public relations (press) staff. Doing nice things that cost nothing for public libraries is a PR benefit, even if small.
posted by fydfyd at 7:40 PM on May 4

Yeah, but if you look at the entire Terms, they never specify "use" being in the singular. That is, it says nothing about the individual viewing videos, OR about groups viewing videos. 5B does talk about "personal use" but that's in a different context.

IANAL, but I don't see anything that directly prohibits a group of people from watching a YouTube video. There's the commercial prohibition, but if this is just for patrons...I would do it.
posted by griffey at 7:46 PM on May 4

You comment that the videos are original & have no whiff of copyright infringement on them, but you didn't mention that original videos (I assume you mean not Hollywood Hits) are still copyright their owners. You seem to be fine, but it's worth noting.

Here's the relevant definition of public performance:

To perform or display a work “publicly” means —

(1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered

You would fall under this. So you've got a public performance of copyrighted works. Which is normally illegal.

Here's the exemption you're looking for:
Notwithstanding the provisions of section 106, the following are not infringements of copyright:
(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made.

I'm assuming that your scenario falls under this. So it would be copyright-exempt, so you won't need to get permission from the rights-holders. So the only remaining question is if this breaks Youtube's terms of service (and if those are enforceable, which is a battle best not fought right here).

Looking through the terms, it seems that everything in section 4 (General) is inapplicable, you're not commercial. The sticky point is section 5 ("Your use of content..), Part B ("You may access User Submissions solely"), clause 1 ("for your information and personal use").

Contrary to some of the above comments, I would say that since they have no expressly ruled IN public performance, they intend to reserve that right. Speaking to griffey's point, the ToS is not a group license, and if it were to be read as such, you couldn't use Youtube at all, because your kids are probably under 13.

However, I have a feeling that the restriction of public performance via the ToS, when it would be legal to give a public performance (as I've mentioned earlier), would not hold up in court. More importantly, there's absolutely no way that Youtube would go after a library showing kids legit videos. They'd sooner take an axe to their Internet link.

And most importantly, like it's been mentioned above, if you email them they will greenlight you in a heartbeat (axe, internet). That's your easiest and most definitive route.

IAN(yet)AL, IANAA (I am not an American), you know the drill.
posted by Lemurrhea at 8:11 PM on May 4

misterbisson is right on, the right is not specifically granted and all rights not specifically granted are reserved. IANAL, but I spend way too much time negotiating the legality of library programs, and this event as you've described it would not be on solid legal ground... but neither are videogame events at libraries, as there is pretty similar language on most console game eulas, and libraries everywhere are charging ahead without worrying (that much) about the legal technicalities of the public performance angle.

However, it's usually not the probabiity but the possibility of litigation that defines a library administrator's comfort zone, so this still may not fly politically for you. Can you contact any of the creators or posters of the shorts you want to show? You might be able to get the files directly or find a downloadable link somewhere and cut youtube out of the worry equation for the event. You could then make a blog post to follow up that embeds the videos from youtube to continue the event online, get the kids linking their own favorites (eek!), etc.
posted by ulotrichous at 8:21 PM on May 4

FWIW, I'd put the odds at Youtube / the creators finding out and caring at about 10,000 to 1.

Think of the requirements for fair use and answer from that. You're not making any money from it, and you're far from a commercial entity. If YouTube has it and they haven't received a DMCA takedown notice, then you're ok.

You worry too much. It's all good :)
posted by chrisinseoul at 7:17 AM on May 5

I think you're in a grey area. A microcinema I'm involved with put on one of these (for free in a museum, not a public library, but not sure that matters) and we went ahead and got permissions from the makers. It wound up being not a big deal to do and then you are definitely in the clear.
posted by *s at 7:21 AM on May 5

My friend mailed the YouTube copyright people. They say:

From: Copyright Service [mailto:[e-mail]]
Sent: Tuesday, May 05, 2009 1:50 PM
To: Ned
Subject: Re: [#434191732] Question about Public Performance.

Dear Ned,

The rights to any screen shots or footage of third party content on our
site are not ours to grant. You would need to follow up with the
individual content owners regarding the rights to this footage. You may
want to try emailing the user through your YouTube account.

Sincerely,

Harry
The YouTube Team


Original Message Follows:
------------------------
From: "Ned"
Subject: Question about Public Performance.
Date: Mon, 4 May 2009 22:22:46 -0400

I have a question.

I am putting together a series of YouTube clips to show at a Public Library to
some groups of kids. I will be opening up the pages the videos are on to play
them.

Can I legally do this or is it a violation of the TOS of YouTube or copyright
violations to show the clips to a public audience projected on a screen for the
group to see.

Thank you.

posted by jessamyn at 3:23 PM on May 5

Fantastic. Thanks everyone for the input, and thanks to Jessamyn's friend for saving me an additional message to the YouTube folks.

Looks like I need to start getting in touch with the content creators (which I was planning to do anyhow). Looking forward to this film festival!
posted by Knicke at 11:46 AM on May 6

For anyone referencing this question in the future, I also contacted Vimeo about this topic. They were more than happy to give me permssion, provided I also obtained permission from the film owner/poster via the site.
posted by Knicke at 12:52 PM on May 12