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Embedded Video Copyright Laws?

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August 31st, 2009
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brainstorming, Business of Blogging

Long story short, our Weblog Tools Videos has had some major spam issues recently and we have taken action to try and prevent this deluge of spam. Thanks to Otto for the heads up on that.

In this mess, we have also had a couple of content generators complain that their videos, hosted on sites such as DailyMotion and YouTube, were used on Weblog Tools Videos without their explicit consent. This got me thinking about the possible ramifications embedding videos on a blog or website. I could not find any permission or license information on the pages where the allegedly infringed videos were hosted and so I assumed that we should remove the videos, which we did.

  • If the video page allows embedding, does that constitute implicit permission to post it elsewhere?
  • Is there copyright and license information buried within the agreement that users electronically sign on uploading to YouTube? Do the video sites allow distinction between the various types of licensed content?
  • If the original content provider is retained (such as using an YouTube embed) and a link is provided to the original video, is that enough? How does the regular user know when not to embed without permission? Should a formal request for permission be assumed in every case unless otherwise noted?

I have tried to find any references to laws, discussions or law suits that talk about the rights of the content viewer and embedder and the best I can come up with are discussions about previously infringing content which are irrelevant in this discussion. Can anyone shed any light on this?

To take this one step further, if you display embed code on your blog or website (think ShareThis), are you implicitly allowing your content (whatever the embed allows direct publish access to) to be republished elsewhere? If you do not allow sharing of your content without permission, are you just displaying certain types of social media tools that prevent wholesale copying of content? I know I personally never factored this into my thought process. Anyone else run into these issues? I wonder what the traditional media with electronic outlets are doing?

Lots of questions without a lot of good answers. If you have some insights, please leave a comment with relevant links and I will update the post for our readers.

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51
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Comments

  1. Brian Carnell (15 comments.) says:

    Correct me if I’m wrong–the idiots in question upload a video to YouTube, don’t disable embedding, and then whine when someone embeds it?

    Isn’t that a bit like uploading a webpage on a server, not password protecting it, and then bitching when someone links to it?

  2. Otto (215 comments.) says:

    There is no real case law on this, as such. However copyright clearly doesn’t apply.

    A embed code is no different than a hotlink. You’re not copying the content, you’re providing a link to it in a form which happens to play it. The content never once passes through your server in such a case, it’s streamed directly from the host (say, YouTube) to the users browser.

    Next, I’d say implicit permission is granted if the video is marked as embeddable, since there exist mechanisms to make the video non-embeddable and those mechanisms are pretty much universal. That said, if somebody says “hey, that’s mine, don’t embed it”, then obviously you’d comply, however in complying one should point out those mechanisms to the author as well, so they can use them properly.

    • Ryan (55 comments.) says:

      You are incorrect. Just as with hotlinking, you may not display others content on your own site regardless of whether it is ever processed through your own server or not. The technicalities over where the data comes from is a non-issue legally apparently (I’m not an expert however).

      • Otto (215 comments.) says:

        I’m sorry to disagree with you, but I am correct on this one… But mainly because I did not say what you thought I said.

        Copyright law is very specific, and yes, technicalities *do* matter. If you don’t actually copy, then you cannot break copyright law. It’s pretty cut and dry there. Embedding a link is not copying. Hotlinking is not copying. Case law on *that* does exist, and supports what I’m saying.

        You might want to check on those hotlinking cases again. Those were not copyright law violations. They may have violated something else, but not copyright law. Ask a lawyer who specializes in same.

  3. Ipstenu (31 comments.) says:

    I agree with Otto and so does the EFF. If they make it embeddable, that’s on them. Also, it’s YouTube’s responsibility to patrol the legal waters of videos hosted on their site, so as long as you comply with YouTube’s rules about embedding (see http://www.youtube.com/t/terms – There’s not a whole lot to worry about).

  4. Dave (1 comments.) says:

    I have a WordPress site devoted to displaying other people’s video peoms – found on YouTube, Vimeo, Blip.tv and the like – and though I’m very conscious of possible copyright violations when it comes to including *text* of poems, it never crossed my mind that some dipshit might think that embedding a video for which they have ennabled embedding might require special permission. In fact, I often hear from video creators grateful for the extra exposure. Otto’s right: it’s nothing but a glorified hotlink.

    To address your other question: I don’t think the use of ShareThis, Sociable or similar plugins by themselves represent any relinquishing of copyright protection, though I do think it makes most sense to use them in combination with some form of Creative Commons or Copyleft license, because the inclusion of such icons does tend to signal an openness to more extensive quoting or reproduction than “fair use” provisions of copyright law would cover.

  5. Fadil (3 comments.) says:

    Interesting. First, there’s license issue. I believe you cannot copy a video from 1 place and upload it elsewhere without asking the owner first, unless the license is CC.

    Second – anything is “embeddable” – you CAN display content from somewhere else because it’s public. An analogy: ItemX is on public display. You bring in a glass pane next to it and allow people to watch ItemX through the glass pane (your blog/site) if they want to.

    There is a difference between spreading content and leeching it. I believe you should cover this issue/debate in one your entries.

    Fadil
    http://blog.fadil.fr

    P.S

    You should always abide to licenses and policies of your host.

  6. Lisa says:

    If people want to prevent use of their uploaded content on third party sites, they can disable these functions. Perhaps you should point at the instructions on how to do this whenever folks complain. Most sites that host photos or video have this information listed in their FAQ or help section.

    I always assume that if they haven’t done this, they’re OK with their work being shared using whatever embedding options the third party site offers. It’s up to the copyright holder to protect their rights—and that includes being aware of embedding options BEFORE they upload.

    • Jeremy (6 comments.) says:

      I dunno. In some cases, you simply can’t “disable” a function without bringing in the horrible thing that is DRM.

      Just because my car doesn’t prevent me from driving where I like doesn’t mean I should be allowed to run people over on the pavement. But somebody running people over should not be an excuse to add a mandatory GPS-based tracking system to all cars.

      • Lisa says:

        I would think that anyone concerned with having their video embedded in other sites would choose not to upload it to a service that does not allow embedding to be disabled.

        If you want a car that is secure, you shouldn’t give the keys to other people :)

        • Jeremy (6 comments.) says:

          Good point — I agree with you. If they really want control over their videos, they should invest in the infrastructure to run their own video streaming service.

          Beggars can’t be choosers. :)

  7. Gary LaPointe (3 comments.) says:

    I figure even if you are in the right, if they say take it down, why wouldn’t you just take it down? It wasn’t yours to begin with.

    But if you’re uploading videos to a video social site that allows people to embed them. Then that’s too bad for them, duh! I’ll still remove it, once again it’s not mine. But unless I say your content is stupid, why would you want me to remove it?

    I think I always put a link back. Heck, I generally put a link back to whomever pointed it out to me on-line. So if they don’t want the link juice, I can break the link…

  8. redwall_hp (40 comments.) says:

    I’m pretty sure that when you upload a video to YouTube, or another such site, the terms of service state that you grant YouTube permission to distribute the video however they see fit, which would include embedding.

    And really, YouTube offers an option to turn off embedding. If you want to be backwards, turn it off instead of whining about it.

    Anyway, I totally agree with Otto and Brian Carnell.

    • Bryan Thompson (1 comments.) says:

      I thought it even went further than that because as I understand it, uploaded videos become the property of YouTube.

      Seems to me it acts the same way as when videos or pictures are sent to TV stations(Americas funniest videos), promotional contests, there is always the disclaimer that it becomes the property of whoever you send it to…

  9. Graphicpoet says:

    This is from someone whom has dealt with this many times over.
    You are all correct in your views and treatment of this issue.
    However the legal grounds are clear so let me clearify.
    Content is content regardless if you embed it or host the
    alleged physical media.

    The video giant youtube has this information in its copyright
    and terms section. The issue that allows one to still have
    legal grounds to pursue a case on (let’s say) shared content,
    is simple and non-complex it is “ownership.”

    Even though they opt-in on sharing their media content,
    at their discretion they can also disallow this sharing if
    they (the owner of said content) do not find the share a positive,
    or simply do not like the usage the end user has chosen.

    Much like any online service provider, you use that service and
    abuse it or use it in a way they deem improper that entity will
    cease your conection or account based on little else.

    Yes I realize we are speaking of John Doe the video guy here.
    According to video, audio and other media content distributors
    once you use their service then John Doe adopts their term
    and condition as their own via their signing and accepting
    the online post/host agreement. Just read YOUTUBES full
    disclosure agreement. LONG? yes. Needed. Your choice.

    My personal opinion is it should not have any legal teeth because one
    should be open minded if one is going to OPEN your media for sharing.

  10. You got to be kidding me. If a video is made publicly available with embed codes then you have the right to post it. They have the right to deactivate the embed function or delete it. Since they are the owners of the video they have full control.

    If they want to whine, get their address to send them cheese and crackers.

    • Graphicpoet says:

      LOL ya got me laughing but unfortunately it is a very thin line that controls the outcome. And xcannabis, most are pretty cool with sharing, but there are those whom for whatever the reason excercise the “RIGHT TO REFUSAL.”

      Without getting to private just let me say. If someone ask you to remove it, it is best to do so. I do agree that they may also need a ship load of cheese and crackers!! :-)

      • xcannabis.com (3 comments.) says:

        As a rule, I let my rights to free speech override someone’s elses supposed right to censorship.

        That is what the Fair Use Act is all about, protecting people from censorship. I have not been asked by anyone to not use their material, and like I said I try to be polite. But the freedom of the press is VERY important, and I am just not cool with censorship.

  11. xcannabis.com (1 comments.) says:

    Here are my rules on embedding, and hotlinking.

    If it is public domain, I have the right to report on it, and even use some if not all content displayed in the public domain.

    In times where I believe that the author/creator/uploader may have a problem with me using the content, I will write them and explain myself to them, as to why I am using the content. But I use it with or without their consent if I am reporting on a story. Why? Freedom of the press! First Amendment! Also, it would do EVERYONE here a lot of good to look up FAIR USE laws.

    I won’t let someone censor my speech, especially if I am doing my duty to preserve my journalism rights.

    I know it’s nice to be respectful, and to not use things that may offend someone. But if you are a blogger, or if you are a journalist, or if you simply want to exercise your constitutional rights.. Well, don’t let some a$$hole push you around. Know your rights and use them!

    This video is all about FAIR USE. Please watch!
    http://www.youtube.com/watch?v=GY-2YshuJ8o

    Here is a page that I made for one of my websites to address this issue. If someone writes me, I will hear them out but in the end I will probably just send them to my copyright information page.

    http://xcannabis.com/fair-use-notice

    I haven’t had a complaint yet, and I hope that I never do. But just incase I do get a complain, I will know exactly how to educate the complainer.

    • lex says:

      Freedom of the press? Stretching it a little I feel. Also, claiming you don’t profit from using content created by others when you show their content on pages supported by advertising doesn’t add up.

      It’s a sketchy area. I don’t mind people using my content (as I said earlier) as long as they don’t try to pass it off as their own so the way xcannabis works I’d be ok with, sadly not all content poachers work this way and with many video hosting sites (Vimeo for example) switching off the embed facility means making the video private which defeats the purpose of putting content online anyway.

      • xcannabis.com (3 comments.) says:

        I have spent 10′s of thousands of dollars on xCannabis.com, and I have not received 1 advertiser or one single dollar (unless you include my wife’s ad on my site as profit, LOL)

        And even journalist, newspapers, and other forms of press sell advertising. Doesn’t mean that they are not press just because they sell ads! I hope thats not what you’re trying to imply.

        I do give credit to the content owners if I snag a clip from somewhere. If there is already a logo on the film or content that I use, then I consider that credit enough. But usually if there is no credit given, I add the credit. Such as for music, or footage from other bloggers.

        The point is, the press either remains free, or it becomes unfree. I believe in the freedom of press, far more than I care about hurting someones feelings.

        It has been stated here time and again. If someone makes a video public domain, by submitting it to a public website. They it is now public-domain. Meaning, it can be used, blogged about, filmed, reproduced in documentaries, played on the local news, etc…

        Any whiners who don’t want there materials public domain, keep it to yourself. Don’t make it public domain, unless you are able to accept that responsibility.

        • xcannabis.com (3 comments.) says:

          Typos and spelling errors galore. Time for bed. Nite.

          Did you get to watch that video on Fair Use?

          http://www.youtube.com/watch?v=GY-2YshuJ8o

          It’s a complicated issue. But again, public domain belongs to all of the public. If it is private, and if someone wants to keep it private. Then… Don’t share it in a public forum or platform.

  12. Thomas Wigington (1 comments.) says:

    I just got this from a Twitter user (@Oovva): It is information and links to the Digital Millennium Copyright Act, which is a part of U.S. Copyright law. This link is to her article: http://www-2.cs.cmu.edu/~dst/T.....etter.html
    It contains links to the relevant laws. It would be worth checking out.

  13. Michael (1 comments.) says:

    If you upload a video to a third party video sharing site, that video is no longer your property, but the third party video sharing site property. Therefore it can be used according to the third party site terms of use – meaning embedding.

    • Ann-Kat (Today, I Read...) (6 comments.) says:

      Just want to clear this up in case anyone should come across it and believe it.

      Michael, you are incorrect. Simply uploading video to a third party video sharing site does not relinquish your digital property rights (unless it’s a shady site). It does, however, grant them the right to display the video according to their terms of use; don’t want them to display your video or don’t agree with their terms of use, remove the video.

      That said, since it’s in YouTube’s terms to allowing embedding (which can be disabled at the option of the video creator), then technically you do not need to remove the embedded video. If, however, you were to download the video, then upload it to your server, that could be seen as a violation of YouTube/video creator’s terms of use. And flagrantly altering the video for self-serving purposes is definitely a violation of the video creator’s copyright.

      As far as Fair Use, that’s a sticky-wicket if you aren’t careful. It doesn’t extend beyond the U.S. (unless explicitly stated) and only allows you to use portions of copyrighted work in certain situations.

      Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

      1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
      2. The nature of the copyrighted work
      3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
      4. The effect of the use upon the potential market for, or value of, the copyrighted work

      http://www.copyright.gov/fls/fl102.html

      In other words, it’s always a good idea to get permission before using copyrighted work and if that’s not feasible, assess the risks of using said work or whether another–more loosely protected work–can be used in its place before ploughing ahead.

  14. urasay says:

    well i am not very smart about internet stuff or law but because i am a law student, i have a fair idea what we need to look into.
    there is such a thing as implied consent in the indian contract Act. (this enactment is almost exactly the same as the one in england).
    “Promises, express or implied – Insofar as the proposal or acceptance of any promise is made in words, the promise is said to be express. Insofar as such proposal or acceptance is made otherwise than in words, the prom­ise is said to be implied. [section 9]. – - For example, if a person enters a bus, there is implied promise that he will pay the bus fair.”
    this, when read with cyber laws and copyright laws gives me a feeling that when provision is made for embedding, the permission is also granted.

  15. Kevin Vand (2 comments.) says:

    I’ve run into a couple of people that objected to my syndication of their content from Youtube. More that appreciated the exposure. My response to complaints is usually “What? Are you some kind of idiot!”

    Why would anyone upload content to a site that’s sole purpose is to publicly distribute videos if they didn’t want it syndicated?

    It’s a profit model for a lot of content creators to use videos to generate click thrus and for some like Hulu and Fancast to include advertising in the embed code. Syndication is a win win.

    Deep linking is different than the invitation of a content creator in the form of “embed this”.

    Fair use is a different matter. And, of course, derivative works or infringements of trademark rights aren’t implied with the invitation to syndicate content.

  16. Auctions (2 comments.) says:

    Interesting. If it is public domain, I have the right to report on it, and even use some if not all content displayed in the public domain.But it is not at all possible in real to have control over their videos if they want so they should not publish in public they should invest in the infrastructure to run their own video streaming service.

  17. Sillydanemedia (2 comments.) says:

    Well if you don’t want your video to be embedded, then disable embedding, furthermore there is a option of disallowing media to use your video it is the very last thing in the settings panel of every video on youtube, I recon if you set that people are not allowed to use it in commercial work.

    A silly thing though, even HULU allow you to embed these days, what harm does it do? you would think that when you upload vids you want as many people as possible to see them right? not to mention if someone clicks on the embedded video they are taken to your YT channel which is great advertising for you.

  18. Jeff Awesome (3 comments.) says:

    I dont see why people would be annoyed if you embedded videos, if they really dont want you to just dont allow embedding. I dont get why they wouldnt want it to be embedded anyway, surely they want as many people to view it as possible!

  19. James Joyner (5 comments.) says:

    Your secondary issue — the various social media “share” buttons — seems to have gotten lost here. Certainly, it never occurred to me that inviting readers to submit links to my content on Reddit, StumbleUpon, Twitter, and whatnot constituted an invitation to replicate it wholesale elsewhere.

  20. lex says:

    I’ve had an ongoing ‘negotiation’ with a video linking site in Europe that leeched one of our videos as their own (going so far as masking the watermark we had in the lower right hand corner).

    I’m quite happy for people to embed our videos, it’s all good exposure and this has generated more traffic for us a number of times. I do resent somebody taking something that cost us money to make and deliberately disguising the fact that it isn’t their product.

    Further to this we had a couple of sites embed our videos we hosted with Vimeo and they removed the bio segment and rewrote the embed code so that our information wasn’t visible. I’m ok with this as long as they mention in the text somewhere that it came from us. A simple email to the site admins sorted those sites out and now we’re all happy.

    I think that if you host video on a site such as Youtube, Vimeo (or wherever) then you are always going to run the risk of video being used in ways you hadn’t intended. Be prepared to write a couple of emails to get things sorted how you want but don’t go into full on meltdown over it. Unless your video is being used completely out of context (not easy) or being used to promote a competitor then I can only really see the increased exposure as a good thing.

  21. David Lari (9 comments.) says:

    I can see some folks might object to a video being embedded on certain sites. For example, if there is a site with objectionable, adult content, you might not want your video to be embedded on that site, while you may have no objection to an embed on some other site.

    So, using common sense, I would say, allowing an embed gives implicit permission to do so. And if I were to receive a specific request to remove an embed, I would do so. When I embed, I do try to provide any relevant link back to the owner.

  22. Adam White (1 comments.) says:

    I wonder about RSS feeds. It’s Called REAL SIMPLE SYNDICATION. Does that mean that everyone with an RSS Feed can be syndicated. By putting the link to my feed does that mean that any other site can reproduce this content. I think so, but I have know idea how the law will interpret it. Eventually someone will be taken to court on syndication without permission, and it will probably be the news media groups who start it. But I would argue that if you put a feed or embed code out there for use, then you don’t get a lot of say on how it get’s used and if aggregaters are out there making money off your content, then you should do a better job of branding and marketing to get the viewers to come to the source for content and not the aggregater. But that’s just my two cents. I pitty the first blogger who get’s torn apart by lawsuits CNN or FOX news. But they will have to argue how using technology intended for syndication and embedding was supposed to protect their content and brand. They probably have something on their site now that stipulates the fair usage of embedded video and feeds, but I doubt anyone ever reads it or adheres to it.

  23. Catch 22 (4 comments.) says:

    The YouTube TOS are pretty clear that you can embed as long as YouTube is identifiable and reachable (right-click the video), but they are adamant you should not be running a service to compete with YouTube.

    I think you are wrong in interpreting the presence of the ShareThis plugin or icon. Just like I allow RSS feeds with only a summary, I was careful enough to remove the print option from ShareThis. I do not allow in any way the reproduction and use of entire posts (and maybe I should put in my site an explicit statement), permission to use is required even with fair use, if anyone reads my TOS, and what ShareThis is supposed to do for me, is to send a link with maybe an excerpt. No more, as having my pages visited is paramount for me.

    Of course, the possibility of printing within any browser exists, and Microsoft’s Digital Rights Management, or any other itchy with intellectual rights corporation, doesn’t give a damn about the little guy. Your computer, and the software running in it, treats you as criminal, preventing you from legitimate and honorable uses of it, because you might infringe someone’s rights (similar to forbidding forks because they might be used to gouge someone’s eyes), on the other hand, to those to whom Digital Rights really matter, the producers of low volume content, the Internet is wide open in ripping them (us) off.

    Just yesterday, I was reading in Amazon consumer reviews in PC games, from people that purchased the games DVDs just to find insurmountable obstacles in installation. It is outrageous what big name companies are doing, starting with the fact that we no longer buy software, instead we are only licensed to use it, with the “as is”, “no guaranty”, “no liability” provisions.

    Shouldn’t we sue Microsoft for having a print button in IE8? Or laws are being worked out so that the only liable party in the digital world, is the consumer (and in preemptive ways)?

  24. Catch 22 (4 comments.) says:

    Why was the link to my blog removed? Could it be you have first and second class citizens here?

  25. Catch 22 (4 comments.) says:

    Sorry, guys. How can delete the previous post?

    • Mark Ghosh (386 comments.) says:

      We use a comment plugin that displays URIs from comments only after you have posted X comments. We also provide a better user experience to logged in users and frequent commenters using various plugins and programs.

  26. mark (3 comments.) says:

    We just published a video about this last week – Most of the discussion here is centered around IP Extremism and Fair use if you ask me. http://www.youtube.com/watch?v=a82BiBOY-6o and http://www.reelseo.com/greg-jarboe-extremism/ is the post

    I believe that once you allow embedding on Youtube, you are granting a license for others to publish the video as is in Youtube’s player. That doesn’t mean they can take the video file and present it as their own content.

    With regard to SEO and specifically with regard to YouTube, I agree completely with Sillydanemedia. LET people embed your video, it acts as a backlink to that video and your video may eventually rank better in the SERPs. Just some thoughts. Great post Mark

  27. Keith Stoneberger (1 comments.) says:

    The user on youtube does have the ability to keep those from embedding the videos to other site. This is kind of moronic since the idea is to get known. When someone clicks on their video from your site, the plays shows up on their page. It is sounding like that these jokers are tryng to make some fast money by trying to create a copyright infringement. All this is going to do is cause a headache for you. All hotlinking does is steals the persons bandwith you are linking the picture to. My site was recently down for about a week because of this, but is was mostly from search bots. So for now I stopped all the hotlinking. The idea is, the more that connects to your site, the better you will be known.

  28. Jonathan Steele of Speechmastery.com (1 comments.) says:

    There was an interesting case, Universal Music v. Lenz that may have some bearing on all of this. My specialty as a legal nurse consultant is mostly health care. However, this has been fascinating reading. Just as the opinions are varied here, the courts could come up with decisions as varied.

    Check out the Lenz case…http://www.assist2web.com/copyright-lawsuits.html

  29. Soccer Videos (2 comments.) says:

    All these copyright laws are getting on my last nerve! If we have to worry about embedding videos from sites like Youtube, what the heck is next?

  30. Isaac | GoBlogger (3 comments.) says:

    If people worry about their video embedded from YouTube, they should not put it there. Put it on private site and write “Don’t Embed My Video Elsewhere or I’ll Kick Your Ass!!”. But things don’t work this way, do they? ;-)

  31. Judith (1 comments.) says:

    My problem was: I wanted to put my own video on my website, but I just couldn’t embed it. So after looking around for a few days I gave up and went to you tube. Then I embedded it on my site and after that disabled embedding on you tube. From my point of view I didn’t want somebody else using my videos, but had no other choice.

    • kevin (2 comments.) says:

      Judith – I think you could make that clear in the description of your video and people would abide it. Did anyone actually use your video? Most videos wouldn’t be of general interest anyway. Most of the movies that are of general interest are posted by people who want syndication.

      You do have other choices. If you wanted to make your own flash videos Riva FLV encoder works. To post them to a wordpress blog, use the wordtube plugin.

      Another service you might want to look at is blip.tv which might address some of your issues.

  32. Otto (215 comments.) says:

    Just a heads up, you’re still getting a fair amount of spam over here: http://weblogtoolsvideos.com/

  33. Laura says:

    If you download a youtube to your own computer, copyright or not, it can be uploaded over and over again by you. I have seen certain videos, from a singer, be removed by the entertainment company that her goes through and, every time, SOMEONE else uploads it again, BECAUSE they have it saved to their computer. Youtube gives you that choice if you want to disable the embed code, therefore making it easier TO keep uploading the videos on there.



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