Going Dark: YouTube’s YouTube Red Policies may be Forcing Channels to Pull Content - Fordham IPLJ
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Going Dark: YouTube’s YouTube Red Policies may be Forcing Channels to Pull Content

Going Dark: YouTube’s YouTube Red Policies may be Forcing Channels to Pull Content

YouTube’s new subscription based service, YouTube Red, just rolled out recently on October 28, 2015.1 In response to viewers’ desire for “more choice when watching their favorite content… and above all, the option to watch their favorite videos uninterrupted,” the new service lets viewers “enjoy videos across all of YouTube without ads, while also letting you save videos to watch offline on your phone or tablet and play videos in the background, all for $9.99 a month.”2 In theory this sounds great. Both content creators and viewers will now have more options available to them when deciding how they wish to create or view content. In practice, however, the policies governing YouTube’s new service have already begun causing some serious issues for at least one of YouTube’s most notable content creators, and further ramifications of YouTube’s new policies are likely to manifest in the near future.

As of October 22 a majority of ESPN’s YouTube channels have gone “dark.”3 Eleven of ESPN’s thirteen channels are now inactive, with all their video content pulled off YouTube in the US.4 Only “X-Games” and “Nacion ESPN” are still live.5 Why has ESPN pulled all this content off YouTube? Well, the answer lies in ESPN’s inability to legally accept YouTube’s new terms of use.6

YouTube’s new position is that it will now hide videos from public view on both its ad-supported and ad-free tiers of any “partner” creator who earns a cut of ad revenue but doesn’t agree to sign its revenue share deal for YouTube Red.7 Google, YouTube’s parent company, stated that the goal of this policy is to ensure consistency across YouTube’s subscription and non-subscription based services, “so people thinking about subscribing to Red don’t have to worry about their favorite content not being available in the ad-free service.”8 A Google spokesperson further justified the position by commenting that the “overwhelming majority of [YouTube] partners, representing nearly 99% of the content watched on YouTube, have signed up.”9

The problem for ESPN is that it just cannot participate in the YouTube Red program at this time.10 Although Disney, ESPN’s parent company, signed an agreement with YouTube regarding YouTube Red, ESPN hasn’t been able to join because of rights and legal issues with various sports leagues.11 Due to certain licensing agreements, ESPN can’t legally have some of its content in subscription services, like YouTube Red, in the US.12 This inability to join has ultimately left ESPN in the unfortunate position of being forced to remove its videos from YouTube.13

The current events with the ESPN-Controversy raises serious questions about how much power YouTube should actually have in pushing its new subscription based service. Some media outlets feel YouTube has resulted to a form of extortion in promoting YouTube Red, essentially forcing “partnered” content creators to sign on to the service in fear of their content (and hence their source of income) being removed from YouTube altogether.14 Other sources note that YouTube had tremendous power as the “defacto video platform of the internet” and the current situation may set an “alarming precedent about how YouTube and Google might work with creators in the future.”15

Ultimately, the start of YouTube Red looks like it won’t be without its controversies. Content creators should be weary of the legal rights they have in the promotion of their content. YouTube may have a right to be selective in the display of its featured content, but it should not have the right to essentially force content creators into accepting its new programs if failing to accept those programs could potentially mean the loss of the creator’s source of income. For the moment, it looks like we are just scratching the surface in seeing if that really is the case here.

 


  1. Matt Leske, Meet YouTube Red, the ultimate YouTube experience, YouTube Official Blog (Oct. 21, 2015), http://youtube-global.blogspot.com/2015/10/red.html [https://perma.cc/RMZ2-YV29].

  2. Id.

  3. Kevin Draper, ESPN’s YouTube Channels Are Going Dark, Deadspin (Oct. 22, 2015, 11:16 PM), http://deadspin.com/espns-youtube-channels-are-going-dark-1738189787 [https://perma.cc/DB7J-DHXT].

  4. Sarah Perez, YouTube Red Deal Forces ESPN to Pull its Videos From YouTube, Techcrunch (Oct. 23, 2015), http://techcrunch.com/2015/10/23/youtube-red-creators/ [https://perma.cc/A97N-V62W].

  5. Id.

  6. Id.

  7. Josh Constine, YouTube Will Completely remove Video of Creators Who Don’t Sign its Red Subscription Deal, Techcrunch (Oct. 21, 2015), http://techcrunch.com/2015/10/21/an-offer-creators-cant-refuse/ [https://perma.cc/498K-MLMF].

  8. Id.

  9. Perez, supra note 4.

  10. Chance Miller, ESPN forced to pull content from YouTube due to inability to sign YouTube Red deal, 9to5Google (Oct. 26, 2015), http://9to5google.com/2015/10/26/espn-content-pulled-youtube-red/ [https://perma.cc/NQF5-NAXR].

  11. Ahiza Garcia, ESPN yanks videos from YouTube, CNN Money (Oct. 24, 2015, 9:44 AM), http://money.cnn.com/2015/10/23/media/espn-videos-youtube/ [https://perma.cc/9UEP-2A39].

  12. Perez, supra note 4.

  13. Garcia, supra note 11.

  14. Mathew Ingram, Here’s why ESPN’s video clips are disappearing from YouTube, Fortune (Oct. 23, 2015, 5:20 PM), http://fortune.com/2015/10/23/espn-youtube-red/ [https://perma.cc/9GUE-T7XK]; Adam Clark Estes, YouTubers are up in arms about YouTube Red, Gizmodo (Oct. 22, 2015, 2:34 PM), http://gizmodo.com/youtubers-are-up-in-arms-about-youtube-red-1738022087 [https://perma.cc/6RT5-X9U7].

  15. Constine, supra note 7.

Jose Santana

Jose Santana is a second year student at Fordham University School of Law and a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal.