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I read in the news this week that YouTube had to slash 30,000 videos from it's library due to a copyright issue.
In the same week, one of my favourite video blogging websites, has had to shut its doors (I think because of TOS issues which may have classified the site as "commercial").
A lot of the Terms of Service outlined by the video sharing networks (from youtube to smaller operations) outline that using embedded videos on your site is ok if your site is personal and non-commercial.
So when does a site became commercial? Isn't the very act of adding a video to your site adding value to something that could be saleable in the future? (whether it be a personal blog, or a video blogging website with an Alexa traffic rank of 20,000).
Also, how and why can Google display videos from any website in the world under their banner and not be in breach of copyright? Where do you draw the line between search and editorial? Who is responsible for demarcating this boundary?
One last example: I run a golfing advice website. I've used Google Videos on my site as embedded content. The owner of the videos actually told me to do this. It's for completely commercial purposes.
Can I get in trouble for using the videos for commercials purposes becuase they are embedded in a Google player?
So when does a site became commercial? Isn't the very act of adding a video to your site adding value to something that could be saleable in the future?
I think the answer is very easy: once a site earns (or tries to earn) money from the infringing content, be it directly or indirectly. Let's say, you run a hobby site on your own server with your own domain, www.widgets.com. You do not have any advertising or affiliate links. The site is ad free. Someday you decide to embed a video that matches your topic perfectly and explains stuff to your visitors. As you still do not run any ads, you should be fine. (BTW, I'm not a lawyer.)
Your traffic rises, and you start to embed more videos. Again, word of mouth brings more visitors to your site, and someday you look at the traffic, thinking - "well, if I put ads on the site, then I can make a lot $ per month". And you do. And sooner or later you will find a nasty letter from some IP holders in your mailbox.
I believe you are crossing the border once you are trying to monetize a site. No ads, no affiliate program, no subscription fees = non commercial. Ads and/or affiliate program and/or subscription fees = commercial.
I do not believe that building up traffic per se is already commercial nature - but right holders might see this differently. The problem definitely comes when you are trying to monetize that traffic. If you find a buyer for your website full of infringing videos, fine, take the money and run. But the buyer will now have the trouble of monetizing. And I guess he will have a hard time to do so.
Why can Google display videos from any website in the world under their banner and not be in breach of copyright?
In fact, on Google Video there are relatively few infringing videos. Also, they are doing deals with media companies. So your statement is not fully correct. However, when you look at YouTube, your question is very valid (especially as they no wbelong to Google). The answer is: They are trying to get away with it. :-) I guess they won't, but that's for the courts to decide. Just the fact that roughly 30,000 videos needed to be removed recently tells you something about the sheer size of the problem. This was still just scratching the surface.
It will be interesting to see who wins this battle.
What about the issue of whether or not the original copyright holder has given me use to use the embedded version of the videos to help market and affiliate prodcut - and the service provider (either google or youtube) says that I can't use their videos for commercial purposes?