Buried in my email this evening I found a cease and desist letter from an attorney at Wilson Sonsini Goodrich & Rosati, representing their client YouTube. We’ve been accused of a number of things: violating YouTube’s Terms of Use, of “tortious interference of a business relationship, and in fact, many business relationships,” of committing an “unfair business practice,” and “false advertising.” The attorney goes on to demand that we cease and desist in from engaging in these various actions or face legal remedies.
Well, crap.
The offense we committed was creating a small tool that lets people download YouTube videos to their hard drives. We referenced the tool in a recent post that walked people through the process of moving YouTube Videos to their iPod.
We created the tool only after a careful review of YouTube’s Terms of Use, which state “If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein.” The letter, however, states “The YouTube’s Terms of Use also allows users to access videos only through the functionality of the YouTube website via streaming on the Web, and it disallows the functionality of downloading videos.” Not only am I unable to find that language in YouTube’s Terms of Use, it directly conflicts with the language I did find and quoted above.
Similar tools are available all over the Internet and have been for some time – see Oyoom, iTube, PodTube, this Firefox extension, step-by-step instructions on an O’Reilly website, and many more.
Cease and Desist letters are often sent with no intention of follow up legal action, even if they are ignored. They are simply a way to show that you have made a good faith effort to protect your legal rights. But in this case I’m perplexed – YouTube takes the position that everything uploaded to the site is licensed for use by viewers, and so there should be no legal rights to protect:
You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service.
Given that downloads, with proper copyright attribution, are permitted under the Terms of Use, it seems like there is no problem at all for a user to download a video for personal use and put it on his or her iPod.
I’ve sent the letter to my attorney for review, but I am likely to remove the tool to preserve my relationship with the company. Based on my review of the Terms of Use and the great number of similar services already on the Internet, I honestly believed we were doing nothing to offend YouTube or Google. And I’ve loved YouTube since the first day I discovered it.
Of course, the irony of YouTube accusing others of copyright infringement is delicious. But I won’t go into that right now.
A copy of the letter is below. I had not listened to the voicemails mentioned in the letter, but I went and checked the last 20 messages and there were indeed two from this attorney.
Update: YouTube’s General Counsel sent us an email today. I’ve copied it below with their permission:
Hi Michael,
I saw your posting today and we’re glad you raised the issue. Here are some thoughts that may help further explain. Currently, YouTube is a streaming-only service. We do not permit users to download the videos we host on our site. We believe our Terms of Use are clear on this point, but in light of the confusion which came to our attention today we are considering revisions to our Terms of Use to avoid any further confusion. It is important to many of our users who have uploaded and licensed content to YouTube that their content is authorized for streaming-only.
If you have any further questions, don’t hesitate to email me.
Best regards,
Zahavah Levine
General Counsel & VP Business Affairs
YouTube, Inc.
Mike,
Just write back “Wilson how about Cease & Desist my brother…………wasting my time”
Michael,
That’s funny, thanks for sharing.
But seriously, have you, or are you going to respond directly, as well as publicly (here)?
The Bloggers are going to have a field day with this one – unfortunately, once someone becomes REAL BIG – they forget the people that helped to get them there in the early days when they would have been very happy for any publicity
http://www.tech...unch.com/?p=137
http://digg.com...IST_Court_Order
Steven – I have no intention of fighting YouTube on this. If they want it down, I’ll take it down. I don’t want to be put on a black list with Google PR. But first I’m going to have a conversation with my attorney and the attorney that sent me this letter.
You don’t have to agree to their terms of service to write software. You’re writing a 3rd party app which happens to download video from youtube.
The irony is insane though…… my head is going to explode.
Youtube is really starting to suck.
Someone should write a youtube proxy so that we can get our videos off of that site.
Kevin
Michael,
Thanks for your reply… I didn’t mean to ask whether you intend ‘fighting’ them – just whether you planned to speak to the attorney or the company to find out what the hell they think they’re doing. If you are able to share any of that conversation, it would be very interesting.
And the fall of YouTube begins….
HaHa, this makes my day – the total irony of YouTube going after others for copyright!!!
Great PR Google/YouTube – goes to show what happens when a innovative entrepreneurial venture gets swallowed up by the big guys – you get a bunch of lawyers running the show.
I wonder if they actually write similar letters to developers of all similar applications. They are really numerous and some of them might be so small that no one even uses them, I believe. I guess in this case a large part of Google investment is intended to go to pay for attorney services.
Thanks for sharing. I see your point of removing the app in order to keep your relationship with gootube, but still leaves a bitter taste in my mouth, especially considering all the positive exposure they got here.
“Techcruch is not authorised to promote YouTube”
I suggest you take them at their word and cease and desist from writing about their site.
I think the key phrase in what Michael has quoted is “as permitted through the functionality of the Website”, which I read as – yes, you can do all of these things: “use, reproduce, distribute, prepare derivative works of, display and perform”, but only via the YouTube website.
I actually think its what Michael said it is, a show of good faith towards the copyright holders of some of the movies that are available.. Think the Big 4 in music land.. While YouTube might have discussed licensing the movies, but only on terms of them being shown online and not to be downloaded.
I agree that any third party software that gets written is not the doing of YouTube and the license they have with the companies wont be harmed due to it, but as a sign of good faith towards said companies these type of letters would be a very low cost sign of good faith, much cheaper than developing new ways to complicate downloading.
I’d be interested in a short report of the convo the lawers have as well, if possible, could you share that Michael?
I s’pose “Do no evil” is subjective.
Aaaaand, if you’re gonna spend that much money and (presumably) get in cahoots with the major tv/movie/music suppliers then they (Google – it’s not a YouTube issue any more) are gonna start playing by someone else’s rules: http://investor...om/conduct.html
YouTube appears to be another case of getting to the top then falling off the cliff. It sounds like the beginning of the end for YouTube.
So youTube thinks that its users may have a problem with others downloading their videos! And why is that? Is it because they will be missing out on rev share they get from YouTube? Of course not because they get nothing!
So youTubers who do you think made you as rich as you are? Your technology or your design? It is your community and blogs like TC, you are now threatening!
You do not own the content you host. Make it downloadable, remixable or share your Google shares with your users.
I think something like this can give unwanted publicity to the tools which youtube wants to prevent people from using. This story will surely make it to the top in digg and other news sites. Even if I assume that it is mostly a techie audience that reads these sites, all of them might not have been aware of this tool till now. I wonder how many videos were actually downloaded using these tools.
It would be an interesting exercise to look into how big companies become on average before turning into evil bullying conglomerates entirely lacking in common sense and any semblance of corporate ethics. It reminds me of HG Wells (all capitalist progress necessarily ends in monopoly and dysfunction).
I’ve never read YT’s terms of use and I’m not a lawyer, I have spent way too many brain cells on DMCA issue…
That said, I thought one of the reasons YT got away with what they did is that they did not facilitate the creation of a mechanical copy of the video on the client machine (that YT had no control over), they only created an ethereal copy during playback.
It’s the streaming VS download argument.
(of course flash DOES make a mechanical copy in the users’ cache, but let’s not talk about that, or YT and all the other video sites that use Flash (and Pandora too) will get in trouble…)
Don’t worry, Michael. As you put it down I’ll gladly host the tool on my server where it will be far from their legal claws.
Ironically, this is not even a new technique and it’s been blogged to ad infinitum. See for your self http://www.goog...+video+download
I guess sending you a C&D letter simplifies their job rather than sending it to 17million++ blogs & websites. Lazy bums :p
aha, TC makes youtube more famous and popular. then youtube is afraid of getting more lawsuits.
Here we go again. Apple Inc. and the “pod” ownership letters…YouTube with the “infringement” letters. The fat greasy lawyers want a part of the action and it’s going to get worse. It’s the cheesy underbelly of the web and the slime oozes from the cracks. Good luck, Michael. I have my own ongoing battle with the word “iTour” in my domain.
They left out the instructions on how to use the term YouTube properly in a sentence.
Bad execution but makes business sense. I am certain that Youtube is planning some sort of content distrtubtion that involves for-pay content. If there are tools out there that can easily download video – blah blah blah
It just sucks because I’m sure a lot of their early adopters came from Mike and his coverage of their service.
We’ll see how this plays out.
As if my opinion matters, I will offer one. I would not cease and desist. I would force YouTube to do what they probably have intended to do all along AFTER they everyone hooked on their currently open and free web-based API’s. They intend to start charging people for using their API’s after they get everyone hooked. If they are forced to reveal this strategy before everyone gets hooked on them as part of “mash-up” site content aggregation, then people might think twice about using them in the first place.
You tool (and others’) use in this manner forces their hand and can result in protecting a LOT of people from being “jacked” at the point of a gun later when Google decides they want to start collecting revenue from YouTube’s use.
Perhaps, through this, the use of YouTube’s open API’s can stay free for a little longer as well.
Cease and desist orders should be used with extreme caution when directed at the press. Otherwise they are a club that preemptively turns off discussion ( a right I consider invaluable) Doesn’t look like W & S really exhausted their options before going to this measure. (2 voicemails does not a great effort make).
Wilson Sonsini has the coolest logo.
What a crock of sh|t. Nintendo came after me the same way (http://www.metroidclassic.com).
Is it just me or is GOOGLE starting to suck more and more too?
I read this early this morning, and it did bring a smile to my face.
Eric Schwartz’s arguments appear to make the most sense, but there is still something tremendously funny about Youggle finding religion about copyrights.
Michael,
I knew this will happen the minute I saw your post about the tool on TC, but did not realize that it will be this soon. It just showed how popular TC is, considering this kind of tools exist and continue to exist way before TC has it in the public. But seriously, we just saw the tip of the iceberg about YouTube’s issues regarding to the nature of its business that everybody is watching how it will evolve, the second Google bought YouTube.
My take on this will be to put myself in GooTube’s shoes and think what I will do. I think I will have to do the same thing which is to keep improving on the technology front to solve the problem (don’t know if it is ever going to be solved) while continue to hire lawyers to show that GooTube is serious about the issues it is facing and life goes on.
But, Michael, I am curious to know what you will do if you just bought youtube. And, I am also curious to know what everyone here will do?
Thanks,
William
I got my first Cease and desist letter via email the other day from Digg. It was nicer wording that the youtube one. I have a domain name that uses digg in it so I am at fault and like Micheal I will take it down (well rename the site).
the letter shown here seems very heavy handed, the only bit I can see where they have a point is in using the name youtube but you could rename the product for that to be fixed. As for the content issue I fail to see what their point is. when you view the video it is no longer on thier site as its downloaded to your computer.
Just imagine this, in year 2050, technology has enable human brain to act as a massive digital storage device as well as to have a way to distribute the information in our brain among people without any external devices. Do lawyers write a letter demanding everyone to cease and desist? I think the technology is not the problem here. It is the copyright law of today.
many other Youtube download tools exist ..even for iPod:
Check http://www.rati...1037_iTube.html or http://www.rati...2_DownTube.html or
http://www.rati...Downloader.html
Do you know if you are the only one receiving this Cease & Desist or all others also?
Can anyone say youtube is falling apart. Those two guys were real smart, and google, real dumb. Anyone noticed all the freaking pauses you get now.
The music industry has demonstrated that using systems to avoid copies is useless and that user are not bandit and so that they are going to pay small sums to see contents.
If Google is planning to use their websites to broadcast video from majors, I believe this stupid letter is only a demonstration to them (quite stupid people) that they care about copyright protection.
Nicola
You don’t need a tool to download the videos. Just go to your browsers cache and copy the file.
This is because yt doesn’t stream but just downloads videos to your browser.
I imagine it’s a good time to be a lawyer for video and intellectual property….lots of business in the near future!
They’re just pissed that you broke the YouTube/ Google thing. I don’t know that nay part of it is problematic EXCEPT the YouTube name in the title, but that’s an easy fix.
“TechCrunch is not authorized to promote YouTube?” Does that mean I don’t get to write about YouTube in my blogs? Exactly how DO they think people found them in the first place? If they are going to require authorization, I think we should all stop linking and writing about YouTube. Watch the hit numbers dip, and maybe they will change their tune.
Hoseheads.
can you approve my comment? appears its in the moderation queue – thanks
They kidding?! Google must keep this up. They are good on their way to become as unpopular as Microsoft…
Just promote this site then:
http://www.videodl.org/
hubris.
I can’t decide if I should be scratching my head, laughing my @$$ off, or just be plain pissed off.
The fact that YouTube, of all freakin’ people, is suing someone for copyright infringement would be like Jesus Christ crucifying someone for turning water into wine: It’s just plain stupid and hypocritcal.
It also makes me very sad that, since Google now owns YouTube, they are in someway involved in this….and it really makes me question my respect for them.
If you were hurting someone, making money from the videos, etc. I could understand, but this is just plain ridiculous.
Interesting. I agree with you Mike.
Folks, someone already Dugg this. Here’s the URL:
http://digg.com...IST_Court_Order
That is really incredible. As you showed, you haven’t broken the Terms of Use. You have the backing of the community Michael. And yeah, it would be wise to remove the tool for the time being, but I’m sure this will all blow over and you will be able to put it back up.
If you’re having difficulty writing back, here are some suggestions: http://thepiratebay.org/legal
Ok I’m kidding about responding A LA Pirate Bay, but I hope it gave you a laugh
We’re behind you buddy, Keep up the good work.
–Jon Z | http://www.jzencovich.com
What a great readto start off the morning. Now if you’ll excuse me, I need to clean the coffee off of my keyboard…and chin.
Make a video response to the lawyer, put it up on YouTube, then download it using your tool and email it to the lawyer.
It seems that GooTube is about to change its terms and conditions.
Michael,
We understand if you take down the video. Sometimes it’s just not worth the fight. We must spread the word about youtube to average users. I would stop using the “service” as your content becomes their content:
“. . . 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 User Submissions in connection with the YouTube Website and YouTube’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the YouTube Website (and derivative works thereof) ”
Why give them free content?
I am wondering whether this is linked by Google, who infact have not yet completed complete take over of youtube.. Would be interesting to see if this is continued once YouTube is officaly owned and controller by Google..
Well keep fighting Mike