Academic journal article Brigham Young University Law Review

From Library to Liability-Importing Trade Secret Doctrines to Erase Unfair Copyright Risks Lurking in YouTube's Creative Commons Library

Academic journal article Brigham Young University Law Review

From Library to Liability-Importing Trade Secret Doctrines to Erase Unfair Copyright Risks Lurking in YouTube's Creative Commons Library

Article excerpt

I. Introduction

Profiting off someone else's work keeps getting easier. The digital age has brought with it new tools for finding and leveraging the creative handiwork of others. Not the least of these new tools is YouTube's new Creative Commons library.1 The video-sharing behemoth's Creative Commons library is a repository of millions2 of videos uploaded by YouTube users who have granted anyone, anywhere license to re-use and modify their works. Video creators can search the library and incorporate the videos into their own videos- even when those videos have a commercial purpose-without paying any royalties or licensing fees.3

Some creatives have lauded YouTube's efforts to further "open the door to collective imagination."4

Do you need a professional opening for your San Francisco vacation video? Perhaps some gorgeous footage of the moon for your science project? How about a squirrel eating a walnut to accompany your hot new dubstep track? All of this and more is available to inspire and add to your unique creation.5

But like any other new tool, YouTube's Creative Commons library comes with potential for abuse and legal controversy. For example, video creators can simply republish Creative Commons videos in entirety without any creative additives except a new (and perhaps more search engine-optimized) name and compete with the original owner for profitable views.6 The only benefit the open-minded video donors (those who initially add the video to YouTube's Creative Commons) get from the bargain is a buried link to their donated videos in the borrower's video description.7 While this is no doubt an issue of great frustration for those donors who feel borrowers have taken advantage of their creative generosity, this Comment leaves that issue for another day. This Comment instead addresses a far more problematic and farreaching issue: the complex copyright risks that well-intentioned and mostly uninformed borrowers face when leveraging YouTube's Creative Commons library.

In particular, Creative Commons borrowers may face copyright liability for republishing content that Creative Commons donors never had the right to donate in the first place. This is likely the case without consideration of whether the borrowers acted in bad faith. This should not be the case. Republishing or modifying a work that is presented as fair game Creative Commons material through the facilitation of an Internet powerhouse, like YouTube, should not expose good faith borrowers to liability.

Part II of this Comment demonstrates that under the current copyright regime, an untold number of YouTube video creators who use Creative Commons videos in their own works could be strictly liable for substantial statutory damages-even for good-faith borrowing. Part III recommends that copyright law adapt to protect the interests of such well-meaning creatives by adopting a wellaccepted doctrine from another realm of intellectual property- namely, the doctrine protecting good faith "second publishers" under trade secret law. Part VI concludes.

II. Copyright Liability Under the Current Law

Well-intentioned Creative Commons borrowers have expressed frustration when, after investing time and energy to publish and promote new videos leveraging resources in YouTube's Creative Commons library, their YouTube accounts have received copyright strikes. These strikes make it so that creatives can no longer monetize any videos on their channels-not just those accused of violating copyright laws.8

[H]ow could it be, that I get . . . copyright strikes on some of these videos when they are supposed to be in the CC-BY9 license? As You[T]ube is also attributing the original Video [sic] with the links to it and I also put the original author and links into my video descriptions, there should be no copyright strike on these types of videos[.]10

In other words, YouTube penalizes creatives who unwittingly use copyrighted material illegally placed in the Creative Commons by others. …

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