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The Terms of Service of YouTube

March 3, 2011
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This is a 500 word piece I wrote for Internet Law on YouTube’s Terms of Service. Links are added rather than bibliography’d so please go easy on me for formatting! As for bad law, please comment without impunity.

For the record, the word count didn’t include quotations from the ToS itself and the referencing style was Harvard as opposed to OSCLA, the norm for law essays. It has, however, been edited to be more click-friendly.

Youtube’s Terms of Service (TOS) form a legal relationship with the end user that appears to be rather one-sided at first glance. YouTube places a lot of restrictions on what you can do (the longest section, 5) yet doesn’t need much action on the user’s part to infer agreement to the TOS. This is likely to be as most of YouTube deals with content, which can contain many parties who each assert rights over it. It seems the goal of the TOS is to define a passive viewer with as little rights as possible. Users do not even have a right to a fully functional website (section 12). So it seems that as a casual user, the TOS does you no favours.

What may be the most important clauses for a YouTube power user are stated in sections 7 and 8. These define what rights and licences you give up and gain when uploading content. According to section 7.1, YouTube does not assert any ownership rights over content, which will be very important to an original content creator. However, YouTube do claim a far-reaching licence that you automatically grant and cannot derogate from (Section 8 TOS). This can be good or bad for an uploader. Their content is available all over the world but at the same time is very hard to control what people are doing with it. The moment it is online, it can be downloaded and then edited as anyone sees fit.

Section 7.9 is an interesting one for users:

“7.9 You further understand and acknowledge that in using the Service, you may be exposed to Content that is factually inaccurate, offensive, indecent, or otherwise objectionable to you. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against YouTube with respect to any such Content”.

YouTube is claiming no responsibility for information accuracy or offensiveness, even requiring that you waive any rights from the law or equity that you have. Simply, this final caveat is moot like some email disclaimers. A person cannot contract out of some responsibilities (Unfair Contract Terms Act 1997, s.2) and with regards to equitable rights, the attempt to contract for or against them is likely to fail. To use the common law against equity is impossible (Earl of Oxford’s Case 21 E.R. 485 (1615)).

Section 5H is worth noting when is states:

“you agree not to use or launch any automated system (including, without limitation, any robot, spider or offline reader) that accesses the Service in a manner that sends more request messages to the YouTube servers in a given period of time than a human can reasonably produce in the same period by using a publicly available, standard (i.e. not modified) web browser”

It seems to try to contract out of a Denial of Service attack, and even prevents a user using a “home-brew” version of a web browser. It is, indeed worth asking why YouTube has inserted this DoS clause, as it is now effectively illegal in the UK as contrary to the Computer Misuse Act 1990 s.3 (as amended), demonstrated in DPP v Lennon [2006] EWHC 1201 (Admin).

In conclusion, for the passive YouTube user, there is no large burden, yet for the active uploader, the situation changes dramatically. Once content is online, YouTube can use it as they like, but that very fact can be vital to someone clamouring for recognition. To point to the widespread increase in viral adverts can help explain why this is a strength in the TOS for an uploader, yet the weakness lies in the absolution of that granted licence.

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