DorobekInsider: Why feds may not be able to use YouTube

Many federal agencies post videos to YouTube or other video sharing sites, but that might not really be… legal might be too strong, but… maybe not inaccurate. But don’t panic yet!

YouTube, of course, is the big playing in online video, hosting nearly one-third of videos posted online. That is largely because it is so easy to use — and then for others to post videos.

Well, it turns out that the YouTube terms of service apparently conflict with federal laws.

We all have seen “terms of service.” Most of us see it as that part of the registering process that you quickly pass over by quickly agreeing. We agree because, essentially, we have no option. (FYI: This site has a summary of YouTube’s terms of service.)

Apparently some wise people were smart enough to read the YouTube terms of service and there is this mind-numbing provision (italics added by me; ALL CAPS added by them):

You agree that: (i) the YouTube Website shall be deemed solely based in California; and (ii) the YouTube Website shall be deemed a passive website that does not give rise to personal jurisdiction over YouTube, either specific or general, in jurisdictions other than California. These Terms of Service shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. Any claim or dispute between you and YouTube that arises in whole or in part from the YouTube Website shall be decided exclusively by a court of competent jurisdiction located in San Mateo County, California. These Terms of Service, together with the Privacy Notice at http://www.youtube.com/t/privacy and any other legal notices published by YouTube on the Website, shall constitute the entire agreement between you and YouTube concerning the YouTube Website. If any provision of these Terms of Service is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Service, which shall remain in full force and effect. No waiver of any term of this these Terms of Service shall be deemed a further or continuing waiver of such term or any other term, and YouTube’s failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision. YouTube reserves the right to amend these Terms of Service at any time and without notice, and it is your responsibility to review these Terms of Service for any changes. Your use of the YouTube Website following any amendment of these Terms of Service will signify your assent to and acceptance of its revised terms. YOU AND YOUTUBE AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE YOUTUBE WEBSITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

Federal agencies only play in federal courts.

There are some other problem language, but… from what I understand, that is the big one.

I’m hearing that the folks at GSA and YouTube’s parent, Google, are trying to work something out for federal agencies that will resolve the conflicts. I have queries into GSA.

Mostly related: The executive branch isn’t the only one dealing with these kinds of issues. Congress has apparently been struggling with issues as well, Roll Call reports.

Less than a week after the Senate passed its own regulations for using YouTube videos, the House Administration Committee tried to do the same — and ended up with an emotionally charged hearing and a breakdown in negotiations.

The issue itself is almost mundane: House rules prohibit Members from using outside Web sites such as YouTube, but many openly violate the rules and post such videos on their official Web sites.

Both House Democrats and Republicans agree the rules need to be updated. But formulating them and negotiating the language has already taken more than a year.

Staffers had hoped to piggy-back on the Senate’s resolution and agree on language before Thursday’s business meeting, but they came up short.

Roll Call has a interesting column by Soren Dayton, a manager for New Media Strategies, who also blogs at conservative Web sites TheNextRight.com and Redstate.com.

On June 24, Rep. Mike Capuano (D-Mass.) sent a letter to House Administration Chairman Robert Brady (D-Pa.) urging the committee to update its guidelines governing Member Web sites. WhileCapuano’s proposal improved the status quo, it ignores the current practice by House Members.

A much simpler principle would have sufficed: What matters is what you say, not where you say it. That would reflect the reality of current practice and be appropriate to the “new” media and the changing economics of the “old” media. Furthermore, these answers are implied by a letter by Speaker Nancy Pelosi (D-Calif.) to Minority Leader John Boehner (R-Ohio), as posted on the Speaker’s office blog, The Gavel…

Let me briefly summarize Capuano’s proposal, its problems, and a simple content-based solution. That solution would allow Members to communicate with the public using today’s Internet tools. Capuano made the proposal as head of the franking commission, which operates under the House Administration panel.

Continue reading Dayton’s column here.