Applying the YouTube Terms of Service: can I use a YouTube video in a presentation legally?

Let's say your boss has asked you to give a talk at an upcoming conference. Let's also pretend that you have found a video on YouTube which fits perfectly into your presentation. It could be a poignant analysis of the global economy, or maybe you just want to add some levity to the moment by showing a video of a cat riding a Roomba. Does the YouTube Terms of Service allow you to show the video at the conference?

Unfortunately, the answer is entirely unclear. YouTube's Terms of Service is a muddled mess of conflicting provisions that simply don't make sense.

Let's take a look at this "agreement" that YouTube has with everybody who uploads photos, or even visits the site. First the good news. Paragraph 6.C. lays out the license a provider of user-generated content (which YouTube calls "User Submissions" and includes both videos and comments) grants to "each user of the YouTube Website."

"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, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service."

(My emphasis.)

Well, that sounds like good news. It sounds like each user gets a license to use and display the videos, which would certainly cover your presentation at the conference. Heck, users also have a license to reproduce and distribute videos as well, which sounds pretty open and progressive to me. The catch comes at the end: "as permitted . . . under these Terms of Service." So what else do the Terms say?

Let's start with paragraph 5, "Your Use of Content on the Site." Paragraph 5.A. says that the content on the site that is not user submissions (like the YouTube trademark, and the rest of the stuff that surrounds the "User Submissions") cannot be "downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever . . ." (Again, my emphasis.) Okay, so you have a license to display the video you want at your conference, but you can't display any of the other stuff (which, frankly, is pretty minimal) on the YouTube site. That seems a little strange, but a clever person could get around it. Maybe you would be alright if you left the video in full screen the entire time. You could even use YouTube's "embeddable player," embed the video in your own webpage, and display the video from there at your conference. Weird, but possible.

Paragraph 5 has some other weird, internally inconsistent stuff in it. For example, it says user comments (which, remember, are part of the umbrella term "User Submissions) cannot be "used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, downloaded, or otherwise exploited in any manner" outside of the normal, everyday use of the site. So, wait, paragraph 6 grants you a license to "use, reproduce, distribute, display and perform" user comments but paragraph 5 takes all of those rights away? What if you wanted to use somebody's comments in an academic or journalistic work? Most of the time those uses would be covered under the fair use defense, but this agreement appears to supersede fair use rights, and does not even consider uses such as these. (This raises another question. I'd love to believe that fair use rights are inalienable, that is, nobody can take them away, but I've never seen anything that suggests that, if you wanted to, you couldn't contract away fair use rights. It's a bad idea for lots of reasons, but any license or agreement could (and many do) take away your fair use rights.)

Going back to our conference hypothetical, the provision of the Terms of Service that is most concerning is in paragraph 4.D.:

"You agree not to use the Website, including the YouTube Embeddable Player for any commercial use, without the prior written authorization of YouTube."

This "commercial use" prohibition is reiterated in paragraph 5.E. So, what's a "commercial use?" Good question, and one which YouTube does not answer. Paragraph 4.D. and 4.E. describes a few examples of what do and do not constitute "commercial uses." But these have to do with advertising, distributing on the web, and the content of the video itself. For example, it's okay to post a commercial for yourself on YouTube. That sounds like a "commercial use" to me, but it doesn't to YouTube. It's okay to embed a YouTube video on a website with advertising, but only if your "primary purpose" in posting the video isn't to gain advertising revenue. What the heck does that mean? YouTube doesn't say where the lines of a "primary purpose" and an incidental purpose are. The Terms of Service say, "For more information about what constitutes a prohibited commercial use, see our FAQ." Unfortunately, though, there is no link to the FAQ, nor is the FAQ to be found in the footer. You can try searching for the FAQ, but you'll just get dozens of videos for FAQs for other stuff. (Please, if you can find the mystery FAQ, which I'm convinced simply doesn't exist, point me in the right direction in a comment, below.)

The real problem is that the Terms of Service assume that the phrase "commercial use" has some inherent meaning that makes sense to everybody and every situation. We're used to seeing the "commercial use" language as it relates to the fair use analysis, but, as I discussed above, fair use doesn't really apply here. Furthermore, the courts don't treat "commercial use" and "personal use" (or, if you prefer, "noncommercial use") as an either/or. It's part of a continuum of factors which make the "nature and purpose of the use." YouTube doesn't really bother to define what a "commercial use" is, and we're led to believe that there are really only two kinds of uses, "commercial uses" and "personal uses." The fact of the matter is that there are lots of uses that aren't purely "commercial" and aren't purely "personal." Your presentation at the conference is just one example. Can you display a YouTube video in a classroom at a private university? Can you put a video on your company website, not to sell it, and not to generate advertising revenue, but to help promote your product or spruce up your business site?

YouTube isn't the only one with this problem. Recently, Creative Commons completed a survey that tested people's perceptions of the meaning of "noncommercial use" in the context of their licenses. CC hasn't yet released the findings of that study, but hopefully, CC will set up some definition and community standards for "commercial use" that will not only be useful for CC licenses, but will be adopted in licenses and user agreements like YouTube's terms of service. Because as it is, some workarounds and presumptions are possible, but it's pretty clear that YouTube didn't consider applying the Terms of Service to people actually using the site.

So what about your hypothetical presentation? YouTube's Terms of Service aren't much help, and I'm afraid I haven't cleared things up much for you. As a practical matter, YouTube is unlikely to go after you for using a video at a conference, and if they did, the confusing and self-contradictory nature of their Terms would likely work in your favor. YouTube clearly designed the Terms to protect YouTube from litigation from others, and not to facilitate litigation initiated by YouTube. A good user agreement, however, doesn't just protect the website owner from litigation, but it also provides cogent, reasonable guidelines that actual users of the site can follow.

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