BYU Law Review Volume 2016 | Issue 3 Article 7 April 2016 From Library to Liability—Importing Trade Secret Doctrines to Erase Unfair Copyright Risks Lurking in YouTube’s Creative Commons Library Adam Balinski Follow this and additional works at: https://digitalcommons.law.byu.edu/lawreview Part of the Broadcast and Video Studies Commons, and the Intellectual Property Law Commons Recommended Citation Adam Balinski, From Library to Liability—Importing Trade Secret Doctrines to Erase Unfair Copyright Risks Lurking in YouTube’s Creative Commons Library, 2016 BYU L. Rev. 971 (2016). Available at: https://digitalcommons.law.byu.edu/lawreview/vol2016/iss3/7 This Comment is brought to you for free and open access by the Brigham Young University Law Review at BYU Law Digital Commons. It has been accepted for inclusion in BYU Law Review by an authorized editor of BYU Law Digital Commons. For more information, please contact [email protected]. 4.BALINSKI.FIN2.DOCX (DO NOT DELETE) 11/21/2016 2:51 PM From Library to Liability—Importing Trade Secret Doctrines to Erase Unfair Copyright Risks Lurking in YouTube’s Creative Commons Library 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 1. Elliot Harmon, Four Million CC-Licensed Videos Uploaded to YouTube, CREATIVECOMMONS.ORG (July 25, 2012), http://creativecommons.org/weblog/entry/33421 (“By letting people remix and adapt videos without having sophisticated editing software or expertise, YouTube and CC are making it easier for anyone to build on the work of others. And that’s pretty cool.”). 2. Id. 3. Creative Commons, YOUTUBE HELP, https://support.google.com/youtube/answer/2797468 (last visited Nov. 2, 2015). 4. Cathy Casserly, Here’s your invite to reuse and remix the 4 million Creative Commons- licensed videos on YouTube, YOUTUBE OFFICIAL BLOG (July 25, 2012), http://youtube- global.blogspot.com/2012/07/heres-your-invite-to-reuse-and-remix-4.html. 5. Id. 4.BALINSKI.FIN2.DOCX (DO NOT DELETE) 11/21/2016 2:51 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW 2016 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 far- reaching 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 well- accepted doctrine from another realm of intellectual property— namely, the doctrine protecting good faith “second publishers” under trade secret law. Part VI concludes. 6. Ekai, Why I’m Giving up on Creative Commons on YouTube, EDDIE.COM (Sept. 5, 2014), http://eddie.com/2014/09/05/why-im-giving-up-on-creative-commons-on- youtube/ (“The real issue is YouTube’s remix tool is horribly broken. Of the 68 videos that users have ’remixed’ from my video, 36 are wholesale reposts of my entire video (many of which are monetized with ads). 28 are by accounts that have since been deleted by YouTube for various TOS violations and a whopping THREE are actual original new works in which a sample of my video appears.”). 7. Id. 972 4.BALINSKI.FIN2.DOCX (DO NOT DELETE) 11/21/2016 2:51 PM 971 From Library to Liability 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. Hoping to avoid headaches like this in the future, video creators are left to wonder: how can they borrow from the Creative Commons library without putting their YouTube accounts at risk?11 That is ultimately a question left for YouTube and its policy team to answer, though common sense would suggest that YouTube strike offending donors, not borrowers.12 But more alarming than the risks of YouTube’s internal remedial efforts, is that well-meaning Creative 8. Forum, YouTube Monetization: Phone number from Youtube Copyright team ? Need to speak with someone from the DMCA Counter Notification team, GOOGLE PRODUCT FORUMS (Jan. 15, 2014), https://productforums.google.com/forum/#!category-topic/monetization- on-youtube/monetization-is-disabled-on-my-channel/q7Q8MKtmn_g. 9. CC-BY is the broadest of Creative Commons licenses. It “lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation.” About the Licenses, CREATIVE COMMONS, https://creativecommons.org/licenses/ (last visited Oct. 20, 2016). 10. Forum, YouTube Monetization: Getting Copyright Strikes on Creative Commons CC- BY Youtube CC Library videos after remixing them, GOOGLE PRODUCT FORUMS (Jan. 15, 2014), https://productforums.google.com/forum/#!topic/monetization-on- youtube/Wu4L_OJ4VdE. 11. Id. 12. It is true that YouTube may be legally obligated to take down any videos borrowing copyrighted content that should have never been donated into the Creative Commons library, but that does not mean that YouTube should penalize good-faith borrowers by demonetizing or disabling accounts. 973 4.BALINSKI.FIN2.DOCX (DO NOT DELETE) 11/21/2016 2:51 PM BRIGHAM YOUNG UNIVERSITY LAW REVIEW 2016 Commons borrowers can be sued for statutory damages because of donor copyright disregard. A. Strict Civil Liability for Infringing Creative Commons Borrowers Creative Commons borrowers currently face strict liability for copyright infringement that results from a donor’s disregard for others’ copyrights.13 “Noticeably absent from [the copyright civil14 liability] standard is any scienter, intent, knowledge, negligence, or similar culpable mental state.”15 Copyright holders can sue well- intentioned Creative Commons borrowers for an injunction16 (requiring the borrower to cease infringement) and damages (monetary relief).17 Just because Creative Commons borrowers have received a license to use YouTube library content likely does nothing to hamper strict liability statutory damages when donors have no right to grant a license to borrowers. Copyright is property, “which [can]not be legally deprived without . consent” from the actual copyright holder.18 In American Press Ass’n v. Daily Story Publishing Co., one publisher led a second publisher to believe an article was not subject to copyright.19 In reliance on the representations of the first publisher, the second publisher reproduced the article without getting 13. Religious Tech. Ctr. v. Netcom On-line Comm. Serv’s, Inc., 907 F. Supp. 1361, 1367 (N.D. Cal. 1995) (“[Copyright] infringement does not require intent or any particular state of mind . .”). 14. Creative Commons borrowers do not face criminal liability. Criminal copyright liability requires “willful” infringement. 17 U.S.C. § 506 (2012). Good faith infringement is the antithesis of willful infringement; thus, such borrowers likely face no criminal exposure.