A Bleg About Recommending Films That Are Available for Free On Line

I know we have some readers with legal training, and this question is directed to them.

Some of the films I recommend each Friday on this site are not readily available from NetFlix/libraries/stores but have been posted online in their entirety.

I don’t want to rip off people who make movies, nor do I want to encourage RBC readers to break the law. But if a film is available for free on YouTube or Hulu (particularly an older movie) does that mean it’s in the public domain, i.e., it is no more wrong to suggest people check it out there than it would be to note that it will be playing on PBS sometime soon? Or would providing RBC readers information that a film I recommend can be viewed for free on line in fact be illegal or unethical?

Advice appreciated. Thanks in advance.

Author: Keith Humphreys

Keith Humphreys is the Esther Ting Memorial Professor of Psychiatry at Stanford University and an Honorary Professor of Psychiatry at Kings College London. His research, teaching and writing have focused on addictive disorders, self-help organizations (e.g., breast cancer support groups, Alcoholics Anonymous), evaluation research methods, and public policy related to health care, mental illness, veterans, drugs, crime and correctional systems. Professor Humphreys' over 300 scholarly articles, monographs and books have been cited over thirteen thousand times by scientific colleagues. He is a regular contributor to Washington Post and has also written for the New York Times, Wall Street Journal, Washington Monthly, San Francisco Chronicle, The Guardian (UK), The Telegraph (UK), Times Higher Education (UK), Crossbow (UK) and other media outlets.

10 thoughts on “A Bleg About Recommending Films That Are Available for Free On Line”

  1. Hi, Keith:
    1. What were you doing up at such an ungodly West Coast hour?
    2. I could try to answer that, but the go-to guy is Eugene Volokh. Mark? Got Gene’s address?

    1. Thanks Lowry and Henry, will check with Volokh.

      As for when I blog, if you take a look at my posts, you will see that 4am – 6am is my sweet spot. It’s the only time when (a) I don’t have to be at the office and (b) The house is quiet.

  2. Hulu films are not free in the sense that the content providers get paid fees from all the ads Hulu puts in all those “limited interruptions” it plugs into everything. Plus access to some Hulu content requires the payment of a monthly fee. And they still plug in the ads.

  3. My non-legal opinion is that the recommendation is harmless, and that if the content shouldn’t be on YouTube, then by drawing attention to it you are probably aiding the copyright owner in discovering the violation.

  4. You shouldn’t have to worry about recommending something that’s on Hulu. Hulu is not a site where just anyone can upload content; if it’s on Hulu, then there was a contract or license to put it there. YouTube is trickier. Yes, there is quite a bit of content that has been uploaded illegally, but there are also uploads from the official copyright holders as well. Monty Python has an official YouTube page, as do Funimation and (IIRC) Manga Entertainment. Often the official stuff is just clips, but sometimes there are full episodes as well. I’m not sure if a full movie is legally available on YouTube, but I wouldn’t be that surprised if it were the case.

    I am not a lawyer, but I’m hard-pressed to see what could possibly be illegal or unethical about merely recommending a movie. If you were to say something like, “Hey, this movie is out of print, but you can find it from perfectly ‘legal’ sources (nudge, nudge, wink, wink),” that would be another matter. Just saying that you think a movie is good and worth seeing shouldn’t be a problem. Some of your readers might be lucky and have the recommended movie in a library, or may be able to find an old legit copy on eBay, and for them, your recommendation is useful.

  5. Very little video, by volume, is actually public domain. Someone holds a copyright. That doesn’t mean it is illegitimately posted. If it is on Hulu, it is almost certainly rights-cleared. If it is on YouTube, I don’t see a problem with pointing to it- there are clear legal mechanisms under the DMCA for rights holders to have something taken offline, a d YouTube makes it straightforward to do so.

    I wouldn’t post BitTorrent links if I were you, but I doubt you were tempted.

    1. Perhaps you are asking the wrong question?

      It may be that practical concerns about copyright are really history since there appears to be no realistic remedy by the copyright holder for use of the internet to post films (or anything else). That may be good or bad depending on where you stand in the chain of folks who would like to profit from content.

      If I cite a book in a footnote in something I publish I don’t think anyone would say I have to check to see if the copyright on the cited book is valid, expired, etc.

  6. Leaving aside the legality of YouTube postings for the moment:

    If your objective is to respect the rights of the filmmakers — and I do not just mean the production/distribution companies, but the scripterwriter and actor and director and composer-of-score and everyone else who is supposed to benefit — stick to Hulu. The copyright issues concerning YouTube (and the now-defunct Veoh, as Professor Volokh will tell you!) are murky at best, but those concerning Hulu are not… and revenue from Hulu is at least supposed to be accounted to those who are supposed to receive residuals. (Whether they actually are is another issue, and has little or nothing to do with rights, and everything to do with endemic corruption in H’wood.)

    Vimeo should, for the present, be treated for this purpose like YouTube.

    There are a few other “legitimate” posting services that cooperate with producers out there, but to my knowledge the only one that shares enough data to allow pass-through to those entitled to residuals is Hulu. I could be wrong on this, but I simply haven’t seen enough data (including both agreements and actual reports) to confirm anything for any service other than Hulu.

  7. Greetings all: Professor Volokh very kindly got back to me promptly with an answer. Let me summarize his email (but hold me responsible and not him for what follows as these are my layman’s translation of his words).

    In general, it is legally inadvisable to link to content that you should reasonably know is copyright infringement. Were you to do that, you might be guilty of “contributory infringement”. There may be limited cases where linking to such material is legal. These would be situations in which the material isn’t available elsewhere (i.e., no one is losing money from people watching it for free on line), and could therefore be argued to be “fair use”.

    If I had a team of researchers to check whether films I recommend are available elsewhere or not, I could risk it and mention when there are YouTube links available for the movies I recommend. Because I don’t have that, I would have a good chance of breaking copyright law if I link to such potentially infringing posts, so I won’t.

    Hulu.com would be a different situation as people have noted here because those are paid uses with advertisements, the revenue from which I presume goes back to the film makers.

    The only film I have recommended so far that is on Hulu is at least a great one “Hoop Dreams

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