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Users Beware: Don't Upload That Video!

Video sites are the cool tools du jour. You can see never-run commercials like the one from the 1960s in which Fred Flintstone hawks cigarettes, watch your favorite episodes of Seinfeld, or post your very own candidate for America's Funniest Home Video. However, sites such as Yahoo Video, Google Video, YouTube and Blip, while catering to consumer desire, may also be violating U.S. copyright laws -- particularly the Digital Millennium Copyright Act (DMCA), say experts in the field.

Simply put, owning a copy of a song or video does not give the owner the right to distribute the material. But does that mean that the Internet site that hosts the video is breaking the law? For that matter, are any of the sites that allow video viewing, uploading or downloading "legal"? The DMCA criminalizes production and dissemination of technology that infringes on a copyright, as well as technology that tries to bypass measures taken to protect copyrights. Therefore, one important criterion to evaluate is whether a site's real motive -- what the law calls "uncommunicated intent" -- is to infringe copyright law. If a site's intention is to aid in violating a copyright, then it is breaking the law.


"YouTube appears, based on my use of several of these sites, to permit the user to locate copyrighted material more readily and easily than, for example, Google and Yahoo." --Attorney Christopher Norgaard

How does one know what a site's actual intent is? Part of the answer to that lies in how the site operates: Are there entire television episodes available online? How easy is it to find copyrighted material? Does the site take down copyrighted works when notified of them? (It is interesting to note that the holder of a copyright has an obligation under the law to invoke its copyright; if violations are habitually overlooked, the holder may be deemed to have abandoned the copyright.)

"YouTube appears, based on my use of several of these sites, to permit the user to locate copyrighted material more readily and easily than, for example, Google and Yahoo," says Christopher Norgaard, intellectual property attorney and partner in the Los Angeles, CA office of the national law firm Ropers, Majeski, Kohn & Bentley. "It is also true, however, that YouTube enjoys a good reputation for quickly taking down copyrighted works when notified of them. YouTube has also reportedly implemented other steps to limit the flow of copyrighted material, including a 10-minute limit on videos, in order to eliminate uploading of movies or entire episodes of television programs." Norgaard acknowledges that although it was difficult to locate entire episodes on several of these sites, it was possible; some sites make it downright easy.

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