Huh? YouTube Sends TechCrunch A Cease & Desist

Buried in my email this evening I found a cease and desist letter from an attorney at Wilson Sonsini Goodrich & Rosati, representing their client YouTube. We’ve been accused of a number of things: violating YouTube’s Terms of Use, of “tortious interference of a business relationship, and in fact, many business relationships,” of committing an “unfair business practice,” and “false advertising.” The attorney goes on to demand that we cease and desist in from engaging in these various actions or face legal remedies.

Well, crap.

The offense we committed was creating a small tool that lets people download YouTube videos to their hard drives. We referenced the tool in a recent post that walked people through the process of moving YouTube Videos to their iPod.

We created the tool only after a careful review of YouTube’s Terms of Use, which state “If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein.” The letter, however, states “The YouTube’s Terms of Use also allows users to access videos only through the functionality of the YouTube website via streaming on the Web, and it disallows the functionality of downloading videos.” Not only am I unable to find that language in YouTube’s Terms of Use, it directly conflicts with the language I did find and quoted above.

Similar tools are available all over the Internet and have been for some time – see Oyoom, iTube, PodTube, this Firefox extension, step-by-step instructions on an O’Reilly website, and many more.

Cease and Desist letters are often sent with no intention of follow up legal action, even if they are ignored. They are simply a way to show that you have made a good faith effort to protect your legal rights. But in this case I’m perplexed – YouTube takes the position that everything uploaded to the site is licensed for use by viewers, and so there should be no legal rights to protect:

You also hereby grant each user of the YouTube Website a non-exclusive license to access your User Submissions through the Website, and to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions as permitted through the functionality of the Website and under these Terms of Service.

Given that downloads, with proper copyright attribution, are permitted under the Terms of Use, it seems like there is no problem at all for a user to download a video for personal use and put it on his or her iPod.

I’ve sent the letter to my attorney for review, but I am likely to remove the tool to preserve my relationship with the company. Based on my review of the Terms of Use and the great number of similar services already on the Internet, I honestly believed we were doing nothing to offend YouTube or Google. And I’ve loved YouTube since the first day I discovered it.

Of course, the irony of YouTube accusing others of copyright infringement is delicious. But I won’t go into that right now.

A copy of the letter is below. I had not listened to the voicemails mentioned in the letter, but I went and checked the last 20 messages and there were indeed two from this attorney.

Update: YouTube’s General Counsel sent us an email today. I’ve copied it below with their permission:

Hi Michael,

I saw your posting today and we’re glad you raised the issue. Here are some thoughts that may help further explain. Currently, YouTube is a streaming-only service. We do not permit users to download the videos we host on our site. We believe our Terms of Use are clear on this point, but in light of the confusion which came to our attention today we are considering revisions to our Terms of Use to avoid any further confusion. It is important to many of our users who have uploaded and licensed content to YouTube that their content is authorized for streaming-only.

If you have any further questions, don’t hesitate to email me.

Best regards,

Zahavah Levine

General Counsel & VP Business Affairs
YouTube, Inc.