Quit Your Crying: MS's YouTube App is Perfectly Leagly(Mostly)

Yesterday's Verge article "Windows Phone doesn't have the 'reach' for Google to build a YouTube app, says Android chief" garnered a lot of attention with almost 500 comments. Among them there were a few commenters who sang the mantra of "illegal!" despite the many calls for reason and counter examples.

After examining Google's claims and the resultant update to Microsoft's YouTube app, it would seem all the shouting is nothing more than a "tempest in a teacup".

I'll explain...

Just the Facts

The cease and desist (C&D) letter made four claims which we'll go over below. A PDF copy of the letter can be viewed here.

Allows Downloads

Up until this morning, I was under the impression this wasn't a legitimate issue. My initial read of the YouTube Terms of Service(TOS) lead me to believe caching of video content was permitted (and that's all the download button did). After re-reading the TOS in preparation for this post I realized the caching of API results is permitted, caching of video content is prohibited and Google was well within their rights to request it be removed. Which Microsoft did with an update.

Issue resolved

Restricted Playback

This is another area where Microsoft over-reached with their initial release of the YouTube app. While the API does accord retrieving results for videos restricted for mobile devices, the ability to view them was a clear violation of the TOS. Again, this breach was addressed in the update Microsoft pushed out on May 22.

Issue Resolved

Blocks Advertisements

This issue is a little convoluted as it seems to be directly related to mobile optimized YouTube content appears on Windows Phone. As most WP users will tell you, advertisements, both banner and in playback do not appear in both IE9 & IE10 mobile.

So, is Microsoft in the wrong here? To answer that we will have to take a look at the language of the YouTube TOS. Section II Prohibitions reads:

Your API Client will not, and You will not encourage or create functionality for Your users or other third parties to:...

7.modify, replace, interfere with or block advertisements placed by YouTube in the YouTube Data, YouTube audiovisual content, or the YouTube player;

It would seem that Microsoft did not modify, block or replace any advertisements placed by YouTube. Instead they just displayed the content as it is served to their mobile devices. Make no mistake, this is more than a pedantic difference. The TOS prohibits actively removing advertisements contained in the data served. If, as is the case with data served to Windows Phones, there are no advertisements in the data stream, there is no breach.

Never was an issue

Use of YouTube Name & Logo

Google's final complaint is not about how Microsoft used the YouTube APIs at all. It is about MS's use of the YouTube and Logo, the usage of which is defined in the YouTube API branding guideline.

In the strictest sense, Microsoft is guilty of breaking the branding guidelines which state:

You may never use the YouTube logo in conjunction with the overall name or description of your application, product, or service. Similarly, you cannot use the word YouTube or any abbreviation, acronym, or variant, such as YT or You-Tube, in the name of your application, product, or service.

For example, you cannot call your application "YouTube for Kids" or "YouTube Education."

However, you may make reference to the fact that your app is for YouTube or works with YouTube by stating "Great App for YouTube."

Yes it is true, Microsoft used the YouTube logo when they should have used the Powered by YouTube logo. And yes, it's also true they used the YouTube name in an unauthorized way.

But there is a funny thing about trademark law (at least in the U.S.) The USPTO requires the license holder to " to actively search and prevent others from using conflicting marks". Failure to do so dilutes the brand and a license holder can lose their rights.

Before you go thinking this is some obscure loop hole, please take in to consideration that Aspirin, Styrofoam, Elevator all used to have trademark protection. The lack of policing and protecting those brands lead to them becoming generic terms and therefore no longer protectable.

How well is Google defending it's trademark? Let's take a look...

Go back and re-read the Branding Guidelines quote I pulled out and then take a look at the following apps from Google's own Play Store.

All of them break the guidelines. All. Of. Them. Heck, two of them also break the public API TOS as one allows playback of restricted content and the other is a downloader, but that is a separate issue.

Now let's look at the Windows Phone Store

Once again, logo and naming violations abound.

If C&D letters were not sent out to the vast majority of these violators, It could be argued (quite easily) that Google has failed in it's responsibility to police and defend it's trademark and they should forfeit their right to protection.

I'm not saying I personally believe this, but it could stand up in court.

While I feel Microsoft should rename the app if requested, anything other changes they bring to the app would be unnecessary and taken as an act of good will.

Bottom line: The current version of the Windows Phone 8 YouTube app does not break any provisions of the API TOS and no amount of crying about "small market share", "rule-breaking" or "they don't deserve it" can change those facts.