Watching with your eyes closed.

You may not know this, but YouTube has an interesting policy regarding downloading their videos:  They don’t allow it.  Here’s what Youtube’s online Terms of Service says…

Content on the Website is provided to you AS IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners.

Yet there are many, many tools that allow YouTube videos to be downloaded.  (For examples, check out the Firefox add-ons here.)  And there is widespread sentiment that this is probably a good thing:  sentiment similar to Joyce’s here.  There is also the fact that if you can display something on your computer screen – regardless of its source – then you can also record and store it for later use.  Or, in other words, in order to watch YouTube videos, you are forced, in effect, to download YouTube videos.

With downloading tools widely available and with the practice of downloading YouTube videos widespread, why exactly does YouTube prohibit it?  Because YouTube is forced to comply with existing copyright law.  YouTube operates much like an ISP under the DMCA (Digital Millennium Copyright Act).  Their position, under that Act, is basically this (from Ars Techina, 2006):

As the EFF’s Fred von Lohmann explains in an editorial for The Hollywood  Reporter Esq., YouTube is shielded because the site is an “online service provider,” arguably similar to your own Internet Service Provider (ISP). Among other things, the DMCA provides protection for service providers against being held responsible for the actions of their users. Much like the RIAA can’t sue Comcast for little Jimmy’s pirate web server he hosts on their broadband network, so too with YouTube.

This means that YouTube users can download Youtube videos and YouTube is indemnified. Officially, however, YouTube must and does comply with existing copyright law – through, for instance, their takedown policy:  If the owners of videos don’t want YouTube to display their videos, then YouTube, in principle, doesn’t display them.

Some have criticized YouTube for being overly willing to restrict and remove videos based on frequently spurious complaints and claims of ownership.  (The most recent criticism of this sort involves parodies of the movie “Downfall”)  But, given the inevitability of downloading tools, practice, and sentiment, all these arguments and peccadilloes regarding YouTube’s takedown policy grow irrelevant.

We now have a legislative process that constructs laws at a much slower pace than new technology confounds those laws.  This leaves new media services – like YouTube – in an odd position that results in mysterious documents like YouTube’s Terms of Service and the ubiquitous and arcane EULAs that preface our use of word processors, spreadsheets, and video games.  These seldom read and poorly understood contractual obligations float somewhere between the impossible and the absurd,  creating an anachronistic, steampunkish world clearly different from the one in which we live.  If laws and documents such as these retain meaning only in a court of law, and are there only used to punish a randomly chosen and unlucky few, then there is the tendency to ignore these laws and documents.