The FAA Says You Can't Post Drone Videos on YouTube

From motherboard.vice.com 

(Note: Update at the end of the article and link to a PDF copy of the intimidating FAA letter.)

If you fly a drone and post footage on YouTube, you could end up with a letter from the Federal Aviation Administration.

Earlier this week, the agency sent a legal notice to Jayson Hanes, a Tampa-based drone hobbyist who has been posting drone-shot videos online for roughly the last year. 

The FAA said that, because there are ads on YouTube, Hanes's flights constituted a commercial use of the technology subject to stricter regulations and enforcement action from the agency. It said that if he did not stop flying “commercially,” he could be subject to fines or sanctions.

"This office has received a complaint regarding your use of an unmanned aerial vehicle (aka drone) for commercial purposes referencing your video on the website youtube.com as evidence," the letter reads. "After a review of your website, it does appear that the complaint is valid."

"This office has received a complaint regarding your use of an unmanned aerial vehicle (aka drone) for commercial purposes referencing your video on the website youtube.com as evidence," the letter reads. "After a review of your website, it does appear that the complaint is valid."

The hobby use of drones and other model aircraft has never been regulated by the FAA, but the agency has been adamant about making a distinction between hobby and commercial use, which has led to much confusion over the last couple years.

Where, exactly, does commercial use begin and hobby use end, for instance? If you fly for fun, but happen to sell your footage later, were you flying for a "commercial purpose?" What if you give it to a news organization that runs it on a television station that has ads on it? What if you upload it to YouTube and Google happens to put an ad on it? What if you decide to put an ad on it?

The letter makes clear that at least some in the FAA (this one was sent by Michael Singleton, an aviation safety inspector in the FAA's Tampa office) take a very wide view of what is "commercial."

"With this letter the FAA is claiming that drone-obtained art created by a hobbyist becomes retroactively 'commercial' if it is ever sold, or if, as here, it is displayed on a website that offers monetization in the form of advertising," Peter Sachs, a Connecticut-based attorney specializing in drone issues told me. "Selling art is unquestionably one's right, and the government is forbidden from infringing upon that right."

Hanes told me that his videos are technically "monetized" on YouTube but that he has never received a payment from Google and the revenue he's technically earned from Google’s ads is less than a dollar.

"I've been flying only for fun, as a hobby," he told me.

FAA spokesperson Les Dorr told me he is looking into specifics of the case, but said that, often, competitors will alert local enforcement offices about drone use. The question then, is can someone really have a "competitor" if they're not flying commercially?

"In general, whenever we receive a complaint about an unauthorized UAS operation, we contact the operator and educate them about the regulations so they can comply," Dorr said. "It’s not uncommon for a competitor who is not flying a UAS to alert us to such operations. I don’t know if that was the case here."

Hanes's case is without precedent. The FAA ​has sent many cease-and-desist letters to commercial drone operators, but those letters have mainly been in response to registered businesses that advertise drone-for-hire services on their websites. To my knowledge, the agency hasn’t sent letters like this to hobbyists. Hanes's website redirects to his YouTube page, and he offers no traditional commercial services.

The FAA has said it ​has the ability to fine or otherwise enforce certain restrictions ... (which have not yet been tested in court). In the past, those fines ​have been as much as $10,000. Those restrictions are supposed to stop pilots from flying over people and from flying above 500 feet. Some of Hanes's videos show him flying in ways that could potentially run afoul of those restrictions.

Dorr, who was not involved in sending the letter to Hanes, reviewed some of his videos in response to my inquiry. He says it's possible the letter was sent because of those potential safety violations. It's worth mentioning that the FAA's drone enforcement strategy is a bit of a mess. Regional safety offices decide initial enforcement, often without contacting FAA headquarters or ​considering things such as the First Amendment.

"It would behoove the FAA Office of Chief Counsel to make it abundantly clear to all aviation safety inspectors that the First Amendment is alive and well," Sachs said.

The fact that Hanes received a letter or was contacted by the FAA, then, isn't nuts. The FAA is well within its rights to at least tell a drone operator to not fly dangerously.

But why, then, is the FAA hiding behind the sham argument that he's flying "commercially"? And, if the agency decides that putting videos on YouTube is a business use of a drone, what does it mean for the thousands of other people who post drone videos online? 

Update: The FAA says it's now looking further into how its safety inspectors send letters like this. 

"The FAA’s goal is to promote voluntary compliance by educating individual UAS operators about how they can operate safely under current regulations and laws," the agency said. "The FAA’s guidance calls for inspectors to notify someone with a letter and then follow up. The guidance does not include language about advertising. The FAA will look into the matter."

A copy of the 4-page certified letter from  Michael Singleton, FAA Aviation Safety Inspector in Tampa, Florida, has been made available here:

FAADoc (2).pdf

 

Views: 2018

Comment by Pedals2Paddles on March 12, 2015 at 11:29am

This is completely misleading. The one person the FAA called into question uses YouTube's montezation feature. Meaning he gets paid for the advertising hits on his videos. This has absolutely nothing whatsoever to do with the rest of the 99% of us who don't receive ad payment and just post the videos for fun.

This kind of BS reporting designed to incite people's anger gives all of us a bad name.  Just the headline of this blog NEEDS to be changed.  It is completely false.


Admin
Comment by Thomas J Coyle III on March 12, 2015 at 11:34am

@Pedals2Paddles,

In other words the FAA had sent the letter due to the drone operator expecting to be paid per view of his video which made it a "commercial" issue and not just another amateur posting?

Regards,

TCIII AVD

Comment by Pedals2Paddles on March 12, 2015 at 11:47am

Thomas, Yes that is correct.  It was monetization that got their panties in a wad.  It doesn't matter that it amounts to pennies.  Payment is payment whether it is 10 cents to $10,000.  The people posting this garbage about youtube videos not being allowed anymore are conveniently ignoring this point.  Why?  Because the guy who had this happened to is also conveniently ignoring it on his internet rantings about it.

Comment by Dave Giles on March 12, 2015 at 12:00pm

There's a bit of a discussion going on here, if interested. The author of the article is actively involved in the discussion as jkoebler and has made himself available for questions.

Comment by John Dennings on March 12, 2015 at 12:13pm

Pedals2Paddles: You have a point, but I have to disagree with your characterization of the article as completely misleading and worthless. The bottom line from the article is that the FAA has gone after a user *solely* for posting videos on youtube, and this appears to be unprecedented and a first, irrespective of the monetization feature use.

Yes  he uses the monetization feature, so the commercial link is more obvious. And "regular" youtube posters don't seem to be at risk.

But ...

What about DJI, 3DR, and other vendors posting advertising youtube videos? Isn't the commercial benefit and link even more obvious compared to the peanuts the guy is probably getting from youtube? With this new FAA attitude, isn't the  FAA sending a message that *any* sort of direct or indirect financial compensation is not allowed?

This seems to me to  be the take home message, and it's not pretty. Seems to be a first, and as such quite worthy of reporting.

Comment by Dave Giles on March 12, 2015 at 12:25pm

If I understand correctly, the ad revenue received by a GoogleTube user is only a small share, a pittance, of the total revenue actually taken in by GoogleTube relative to that user. So, who's really doing the monetizing here?

Comment by BacklashRC on March 12, 2015 at 12:32pm

I believe the problem here is that, while the FAA may have legal grounds to tell the pilot not to fly for commercial purposes, they have no legal authority to tell someone to take down a posted video or website.

Comment by Nolan Berg on March 12, 2015 at 12:39pm

GoPro hands down makes the most by monetizing from all their promotional videos. Watch any of their 4K series or Hero 4 promotional video, 80% of them are filmed from a UAV.

Comment by Gary McCray on March 12, 2015 at 2:53pm

The FAA is actually opening an old and very contentious can of worms here.

All of the flying videos put out by RC plane companies for their products featuring either cameras in their planes or photographed by other following planes clearly constitute commercial use.

The FAA has avoided on purpose these "violations".

Further more, the FAA actually has actually stated that all filming of RC or Model planes even from the ground for advertising purposes constitutes flying for commercial purposes and is thus forbidden.

In the past this issue has raised it's ugly head several times.

But for the most part these "infractions" were simply dropped by the FAA who finally decided to ignore them.

It is, however, important to understand that this is something that the FAA considers within it's rightful jurisdiction, even if no one else in the United States does - me included.

Comment by Mark on March 12, 2015 at 4:31pm

Generally speaking, the receipt of proceeds does not constitute that you are carrying on a business, aka, operating a commercial enterprise. There are many factors that come into play, the demonstrated intent to conduct a commercial enterprise is major a deciding factor.  The receipt of incidental income would not in itself determine that one was engaged in a commercial enterprise.  

If you entered a comp at your local golf club knowing there were prizes, you are now a pro golfer?  I wish but I would not win the prize unfortunately!

I take some pictures with my hobby drone for friend, and receive a case of beer as a thank you?

I establish a business name, website and advertise my services for a fee?

Obviously the laws in all countries are different. They do all however have to exist and operate in the real world meaning that the interpretation is not just 'black letter'.  Concepts such as the intended application of the legislation and Equity should not be ignored.

Unfortunately, little guys often don't have luxury (time or money) to push back when rules are applied by 3rd parties running an agenda, legitimate or otherwise. 

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