Not a lawyer, but here's my take:.
Better to link than embed, although embedding from YouTube is a gray area, given that the uploader has a choice to disable embedding. Having said that, I suggest that you just make sure that you're not embedding non-porn videos onto a porn site or any other controversial vids. Copying or scraping someone else's content is a BIG no-no and can land you in a load of trouble, both legal and technical (for example, blacklisting by the major search engines). DON'T DO IT.
Oh? Unless the publisher is McDonald's huh?.
Jennifer, you argued exactly opposite that point when somebody was threatened by McD's about some tube site...
It is not a "gray area"... it is an area that is fully within the content provider/uploader's control whether to allow embedding or not...
If you're just linking / embedding and not hosting the videos, then a simple notice, such as "We link / embed videos of others. We do not host these videos." would likely suffice.
However, if you allow others to post video links / embeds, then you should add a prominently visible "Report Video" button for people to use to flag video links / embeds, such as those, for example, that are sexually explicit.
If you intend to host user uploaded videos and are located in the U.S., then you should definitely register as an online service provider DMCA designated agent to fully take advantage of the safe harbor provisions of the DMCA. U.S. Copyright Office - Online Service Providers.
Registration cost has skyrocketed, since the last time I looked, to around $135. So it's not cheap, but it's, currently, a one-time fee.
In my view, writing (or copying from elsewhere) long-winded notices, disclaimers, user agreements, etc is likely a waste of time, and in some instances may increase your legal liability - yes, increase it!.
Consulting with an attorney is likely the best way to go, if and when your website becomes, or at the verge of becoming, very popular. At this point, in my view, don't sweat the small stuff - focus on growing your site first.
As I said in the McD thread, the parents of those kids in the McD video could sue the porn site and possibly win because they did NOT agree to have their children featured on a porn site via embedding.
I also said McD made the choice to NOT disable embedding, so they probably don't have a legal right to go after the porn embedders. They could threaten, I suppose.
OP asked for an opinion, and I offered it to him.
So, your beef is??????.
Just because someone has enabled embedding does not necessarily mean they are giving you rights to display the embed on a commercial website.
In fact, it is against YouTube's TOS to embed on pages with advertising where the advertising would not be a viable income source without the presence of the embed on the page.
YouTube has banned many sites from embedding.
Some record labels may also feel as though you need a performance license to display their material on your commercial site in any way...
Well said. For the OP, linking is probably the better way to go, if intending to utilize AdSense, since Google also owns YouTube.
In my view, embedding is similar to deep-linking (linking to an internal page of a website instead of it's homepage). It's a practice that some courts have ruled is fine, as long as the deep-link is clearly identified as belonging to the site it's associated with. Yep, apparently an argument put forth by the plaintiff in a Texas case regarding deep-linking - the defendant lost. Texas court bans deep linking The Register.
However, to reiterate, the defendant in the Texas case was, in effect, passing-off the links to the audio broadcasts as being part of his website. From what I've read, that case was more of an unusual one, and that in many cases, courts have ruled deep-linking to be ok, such as in the Ticketmaster / Tickets.com case.
Check out the link below for an overview of case law regarding linking: FindLaw's Writ - Ramasastry: A City Tries to Stop a Woman from Linking to Its Website: Why Most Challenges to Links Will Not Succeed, and What the Rare Exceptions May Be.