It is probably nearly impossible to search for a video clip (or, I supposed, anything) online without coming across some content that infringes another’s copyright. This is unsurprising, given the ease with which copyrighted material can be reproduced and uploaded. What is surprising is just how often infringers blatantly identify the content as violating copyright law while – presumably – believing that they are shielding themselves from any liability. You’ve seen it – YouTube videos of popular songs and video clips with captions that say some variation of “I do not own anything” or “All rights to the owners.” These “disclaimers” are nothing if not pervasive.
The Digital Millennium Copyright Act (DMCA) provides a “safe harbor” for online service providers (“OSPs”) such as YouTube. This safe harbor frees OSPs from copyright infringement liability for content posted by third party users provided the OSP complies with the DMCA’s provisions. The DMCA recognizes the enormous task that OSPs would face if they were required to completely eliminate any and all infringing content. As such, the DMCA encourages the removal of infringing material while not making OSPs absolutely liable in all instances. *
Now back to those “disclaimers”. I find myself wondering just what percentage of infringing material could be quickly and easily identified and removed from YouTube if the OSP simply took down every video with a caption such as “I own nothing” or “This ain’t mine” (my personal favorite). These “disclaimers” are virtually meaningless as anything but outright admissions of infringement. The idea that disclaimers such as these are legally relevant likely stems from two inter-related misconceptions in copyright law: that the law recognizes the moral right of attribution and that copyright infringement and plagiarism are interchangeable concepts.
In general, and contrary to common belief, the Copyright Act does not confer any moral rights.** The term “moral rights” is the designation given to rights in expressive works that recognize those works as an extension of an author’s personality. One such moral right that is not generally recognized in U.S. copyright law is the right of attribution, which relates to the author’s right to be acknowledged as the creator of the work. The high number of consumers of expressive works who mistakenly believe that attribution is an enforceable aspect of U.S. copyright law is likely due to the widespread confusion between plagiarism and copyright infringement, as well as general intuitions that authors ought to be credited for their work.
“Copyright infringement” encompasses legally actionable violations of an author’s exclusive rights granted by the Copyright Act. As attribution is not a right granted by U.S. copyright law, a potential infringer cannot avoid liability for reproductions or distributions merely by eschewing personal ownership of the work or including the actual author’s name.
On the other hand, plagiarism is an unethical – not necessarily illegal – use of a work that violates academic or professional standards. Plagiarism is not always clearly defined and guidelines may vary depending upon the relevant academic or professional field. However, quite often the user of a work may avoid plagiarizing that work by providing proper attribution and citation. For further discussion of the differences between infringement and plagiarism, I recommend this article from PlagiarismToday.
So those disclaimers? While it is certainly always a good idea to give credit where credit is due, they won’t insulate against a potential infringement suit if the content is being used in violation of United States copyright law.
*Admittedly, this may be an overly simplified view of the DMCA, which can be a rather controversial act and is worthy of several blog posts in and of itself.
** The Visual Artists Rights Act is a narrow exception to this general rule but is not relevant in the context of audiovisual works posted online.