You see it all the time on YouTube: "No copyright infringement intended." Some 489,000 videos contain this disclaimer according to Andy Baio at Waxy.org. Generally, you see it posted alongside copyrighted music, old movies, and TV episodes. Why do people use it and is it legally valid?
Just what is copyright infringement? How does it apply to YouTube?
The US Copyright Office defines copyright infringement as the performance, publication, reproduction or distribution of a copyrighted work without the copyright holder's permission. This also includes use in derivative works. The copyright laws of most other countries use legal innuendo to the same effect.Unless you have permission from the copyright holder or in the case of certain songs, YouTube has arranged for a license agreement with the rights holder, you are technically in violation of copyright law when you publish the work on YouTube. Whether or not the copyright owner decides to do something about it, and the actual damage that has occurred, are entirely different matters.
Fair use law does allow for some exceptions. However, the factors courts use to determine fair use are quite complex and require a post of their own. While courts have ruled that private copying for personal archival use is no problem, fair use law does not extend to uploading music and videos to YouTube.
So can I use "No copyright infringement intended," to bypass copyright laws?
While you may have the best intentions in sharing a copyrighted work, "No copyright infringement intended" is not a Get Out of Jail Free card. If we could use legal disclaimers like this to bypass laws, many of us would be driving Ferraris right now (no stealing intended). Actions speak louder than words, and simply stating that you aren't doing something while doing it is not a legal defense. By posting such a disclaimer, you are even acknowledging that you realize that your actions could be in the wrong. Posting that you don't intend to commit copyright infringement on your website, Facebook or YouTube is a sure sign that infringement is taking place.
That being said, the wide use of "No harm intended" disclaimers leads to a bigger question Sure, infringement is occurring, but is it really a big deal?
The bigger question: Is non-commercial infringement a big deal?
I think the main reason you see so many messages on YouTube disclaiming liability for infringement is that uploaders really want to share something cool with others. Maybe it's an old movie from the 1980s or an avid fan of a discontinued TV series. Tracking down the rights owner may be impossible, and the precise harm of this sort of sharing is hard to quantify. That being said, most videos with the "No copyright infringement intended" disclaimer appear to be recent television shows.
The rights owners shouldn't be difficult to track down and the fact that the work is copyrighted should be clear. Uploading these sorts of works does hurt the creators because a) it reduces the commercial value of the content and b) it's their property to distribute as they wish.How can National Geographic, for example, justify spending on new programs and ask people to buy DVDs in its store when their shows are all over YouTube to watch for free? One could argue that content creators need to adapt to the Internet and make their work more accessible. This is true in many cases. But at the end of the day, that's their decision to make. How would you feel if you invested $5,000 to shoot a short movie, uploaded it to your website, and then saw it copied all over YouTube? You might be glad for the exposure. On the other hand, you would have hired a promotions guy if you wanted publicity and may have wanted to keep your work relatively private for the time being.
The situation is harder to examine when the work is older and you can't find the original owner. We'll address the situation with so-called "orphan works" in yet another post.What we can learn from all of this:
- "No copyright infringement intended" is about as useful as a tank top in winter.
- Content owners need to adapt to new forms of media consumption and sharing.
- If it's not yours to share, it's not yours to share.
