Where YouTube's legal problems lie
Is Goo-Tube vulnerable to legal attacks from people who appear in videos posted there? Depends on the copyright, Fortune's Jia Lynn Yang reports.
By Jia Lynn Yang, Fortune reporter

NEW YORK (Fortune) -- Up until very recently, John Hall was in his 18th year of teaching management at the University of Florida. Then he wound up on YouTube.

"Listen, my children, and you shall hear of the midnight ride of Paul Revere," Hall recites in a video of his lecture from the morning of Sept. 5. The class is MAN3025: Principles of Management, and instead of covering Peter Drucker, he touches on the Han dynasty, his love of old churches, the origin of the middle finger (followed by a demonstration), and the city of Boston, where "the Cabots talk only to the Lodges and the Lodges talk only to God. Yeah, there we go. Umm."

Three days later students received an e-mail saying Hall had been replaced by fellow business professor Amy Brownlee. Soon, an online video of Hall, recorded by the university for students unable to attend the lecture, spread to YouTube.

"What was displayed on that video is not what we'd expect as professional behavior from one of our faculty," says Kyle Cavanaugh, Florida's associate vice president for human resources. When called at home, Hall picked up the phone but declined to speak with Fortune, deferring all questions to a university spokesperson.

Now that Google (Charts) acquired You-Tube earlier this month, in a stock deal worth $1.65 billion, one wonders if "Goo-Tube" is vulnerable to legal attack from private citizens like professor Hall whose reputations are damaged with a few clicks of a mouse.

According to David Korzenik, a media lawyer at the New York law firm Miller Korzenik Sommers LLP, it's very difficult for an individual to control how they've been portrayed on YouTube. To start, media outlets - traditional or online - do not need a person's permission before printing a photo of him or her. It's only necessary if the image is used commercially, like in an ad or on products and merchandising.

Even though YouTube profits from the traffic its videos draw, its model is more like that of a newspaper or magazine, where people exchange ideas with one another; the purpose, one can argue, is editorial rather than commercial.

Secondly, even if the content is libelous, the law heavily protects sites like YouTube from being held accountable for what its users post, even if Hall is being referred to on YouTube by users as "zany professor," "stoned prof," and "business prof wasted drunk teaching class."

"YouTube would be exempt from libel claims even if the headlines are wrong," says Korzenik. "He [Hall] would not have a claim against the interactive service provider. He would have a claim against the person who posted the video."

"We don't control the content on our site," says Julie Supan, YouTube's senior director of marketing, in a statement. "The only way a video is removed from the system is if the community has flagged that video because it is a violation of our Terms of Use."

YouTube's real legal problems still lie in copyright protection. There, the law (in the form of the Digital Millennium Copyright Act) gives the site less protection for what its users do, and YouTube will have to find a way to respond to complaints quickly, or face lawsuits.

In the case of Hall and the University of Florida, the video may be under copyright protection by the school. Korzenik suggested that one way someone like Hall could get his way, should he want the video taken down, is to petition the school to report a possible copyright violation to YouTube and see if the site responds.

Otherwise, someone like Hall has only two other options: Try tracking down whoever posted his video in the first place and threaten suit. Or, watch from the sidelines as his reputation becomes just another casualty in an age when one person's gaffe can spread faster than you can say Goo-Tube.


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