The Legality of Downloading Content from YouTube

A researched opinion

Teaching with YouTube content, either online or OFFline, for non-profit teaching and commentary purposes is Federally protected "fair use," according to Section 107 of the US Copyright Statute. https://www.copyright.gov/fair-use/more-info.html.  

No copyright statement or "FBI Warning" can negate this historic and Federally granted right to teachers, researchers, and commentators who are using legally obtained copyrighted material for the purposes of teaching, commentary, parody, or research.  

YouTube's terms of service (TOS) which you may or may not have agreed to as a user, states that downloading a video and viewing it "offline" violates their terms of service,   Can they do that?  Can Terms of Service negate your Federally protected right to use media for non-profit teaching and commentary?  We don't think so, and neither does US Copyright Law.

YouTube wants its material to be shared across social media and on websites so that people will see the ads associated with the content. However, teachers and students CANNOT be compelled to view ads included with freely distributed or legally purchased content. If they controlled access by selling the clips, then you'd have to pay for them, but you could still fast-forward through the ads. That's your right -- to avoid ads.  Federal Copyright Law and precedence grants a large degree of latitude to the "end user" for the format they legally choose to share content with their students. For example, you can copy a DVD to a flash drive if you need to, or snap a photo of a painting and show the photo for teaching purposes. Teachers have the right BTW... individual users of material for personal use also have this right  -- meaning, it is perfectly legal for you to make a copy of a song CD you have purchased to listen to it on your computer.

YouTube, of course, doesn't want you to download their videos into an MP4 format for viewing "offline" because you'll miss their advertisements.  However, US Copyright Law makes no distinction about the FORMAT you get the material in, VHS, print, DVD, online, offline, MP4, whatever.  What copyright law says is that teachers have the right to format copyrighted material in a way that facilitates our teaching. Creating a handout, for example, or copying a video from VHS to DVD. Or compiling several video excerpts into a "montage" of clips. These are protected activities. And thus, file format (online or downloaded and viewed offline) is irrelevant to protected "fair use."    

As long as the change in format is for Federall protected non-profit teaching purposes, it is protected use.

YouTube makes money off the ads seen online and shares that revenue with the owners of the video content. So it can sue companies trying to make THEIR OWN BUCK by providing a way to download YT content with ads on the grounds of "infringing" on the licenses which YT's content providers have given them. However, a teacher has the protected right to convert media from one format to another for teaching purposes and to show the material WITHOUT ads. Thus you won't see YT suing teachers making "fair use" of the material. The only thing YT can do is put technical barriers in place and sue companies trying to profit.

Please note: This does not apply to pirated material. It only applies to material which the copyright holder has allowed to be circulated or sold. This is why you need to be careful about what you use from YouTube, ...making sure it has not been illegally posted. YouTube is continually evolving its tools to identify illegally posted content. And they are increasingly engaged with the internet legal community to protect legitimate "fair use." 

Recommendations:

In the case of music videos, if you need to download a music video from YouTube to show it outside of YouTube's wrapper in a teaching situation or for the purposes of commentary,  I strongly encourage you to BUY the song from iTunes or Google Play. It will cost you under $2 and meet your obligation to the copyright holder's rights and creativity.  (As far as honoring YouTube's right to ad revenue, you probably spent enough time watching the video with its ads already.)   

Purchasing a copy of the song and downloading to one device, while also downloading a music video with a copy of the same song obeys both the letter and heart of the law. Federal digital rights law allows you to purchase a song and have it stored in more than one format on multiple devices (such as, your computer and an iPod). That fact that you already previewed the clip (probably several times) on YouTube, means in principle that you have met your ad-watching obligation to YouTube as well.

In the case of YouTube videos that use copyrighted images or videos,  As a teacher you have a Federally protected right to make a copy of legally posted material in a format suitable for your teaching purposes, and teach with that material in a face to face teaching situation, and not have to show advertising or other YouTube content they have associated with that video. Just be sure the content you are showing your students HAS been legally uploaded. YouTube doesn't promise that everything has been legally uploaded  -though their technology is improvingly rapidly enough that they are now seeing and taking down "illegally" uploaded content. (A surprising number of publishers want their material to stay on YT, however.) Thus, In the case of animated Bible videos and the like, you need to check the credits, licensing links, and who uploaded it --to be sure it's not bootleg. In many cases, the publishers allow their material to be freely posted, though they continue to sell it elsewhere.

It's a brave new world, and as teachers, we need to do our best and have good intentions, but we should also not give up our historical and Federally protected right to teach with copyrighted material that is available to us, and indeed, being made available to everyone else!

Some Links:

http://fairusetube.org/guide-t...if-video-is-fair-use

https://www.copyright.gov/fair-use/more-info.html

YouTube's own "Fair Use" Foggy "Maybe"
https://support.google.com/you...answer/6396261?hl=en

Neil MacQueen is a Presbyterian minister, author, and multi-media producer. He has been researching and writing about copyright law for Christian Education for a number of years.