of the that-extension-violates? dept
There are a number of different tools out there that allow you to download YouTube videos. These tools are incredibly useful for a number of reasons and should are seen as self-evidently legal in the same way that home video recording devices have been declared legal by the Supreme Court, because they have significant non-infringing uses. But, of course, we are in the digital age, and everything that needs to be determined is up for grabs again, because “Internet.”
In this case, a company called Yout offered a service to download YouTube video and audio, and the RIAA (being the RIAA) couldn’t let that happen. Home recording is killer music, you know. Rather than go after Yout directly, the RIAA sent angry letters to many different companies that Yout relied on for their existence. It delisted Yout’s website from Google, its payment processor cut off the company, etc. Yout was annoyed by this and filed a lawsuit against the RIAA.
The gist of the lawsuit is “Hey, we’re not infringing anything,” asking for declaratory judgment. But it also seeks to go to the RIAA for DMCA 512(f) (false takedown notices) abuse and defamation (for the claims it made in the takedown notices it sent). All of this would be a long shot, so it’s probably not a big surprise that the ruling was a total loser for Yout (first posted on TorrentFreak).
But if you read through the ruling, there are things to worry about besides just the ridiculousness of saying that a digital video recorder is not protected in the same way that a physical one absolutely is.
In arguing for declaratory judgment of non-infringement, Yout argues that it does not violate DMCA 1201 (the problematic anti-circumvention provisions) because YouTube does not actually employ any technological safeguards that Yout must circumvent. The judge disagrees, basically saying that even though it’s easy to download videos from YouTube, it still takes steps and isn’t just a feature that YouTube provides.
The steps outlined constitute an exceptional use of the YouTube platform, which is evident from the fact that the steps provide access to downloadable files through a side door, the Developer Tools menu, and that users must obtain instructions that are available on non-YouTube platforms are offered to explain how to access the file storage and their files. As explained in the previous section, the regular YouTube player page does not offer a download button and appears to direct users to stream content. So I reasonably infer that an ordinary user does not have access to downloadable files in the ordinary course.
That alone is basically an attack on the nature of the open internet. There are tons of features that native websites don’t provide, but that can easily be added to any website via add-ons, extensions, or just some simple programs. But the judge here is basically saying that providing a feature in the form of a button does not directly mean that there is a technological protection measure, and circumventing it can be considered infringement.
Wow!
Of course, part of DMCA 1201 is not just having a technological safeguard in place, but a effective one. Here there seems to be an argument that it is not a strong one. This is not a strong safeguard at all, because basically the only safeguard is “not including a download button.” But, the court sees it differently. Yout points out that YouTube basically makes no effort to stop anyone from downloading videos, showing that it doesn’t encrypt the files, and the court responds that it doesn’t need to encrypt the files because other technological protections exist, such as passwords and validation keys. But, uh, YouTube doesn’t use any of them either. So the whole thing is weird.
As I have already explained, the definition of “circumvent a technological measure” in the DMCA indicates that scrambling and encryption are prima facie examples of technological measures, but it does not follow that scrambling and encryption constitute an exhaustive list. Courts in the Second Circuit and beyond have found a wide range of technological measures not expressly enshrined in law to be “effective,” including password protection and validation keys.
So again, the impression we’re left with is the idea that if a website doesn’t directly expose a feature, any third-party service that provides that feature can bypass a TPM and violate DMCA 1201? That can’t be how the law works.
Here then the court says (and I only wish I was joking) this changing a URL bypass a TPM. Let me repeat that: modifying a URL may infringe on circumvention under 1201. That’s… ridiculous.
Moreover, Yout’s technology clearly “bypasses” YouTube’s technological measures because it acts affirmatively to “change[]” the Request URL (also known as signature value), which causes an end user to access content otherwise unavailable. … As explained, without modifying the signature value, there is no access to the allegedly freely available downloadable files. Accordingly, I cannot agree with Yout that there is “nothing to get around.”
Then, as Professor Eric Goldman notes, the judge dismisses the 512(f) claims by saying that 512(f) does not apply to DMCA 1201 claims. As you hopefully recall, 512(f) is the part of the DMCA that is supposed to punish copyright holders for sending false notices. In theory. In practice, courts have basically said that as long as the sender believes the notice is legitimate, it is legal, and therefore there is basically never any penalty for sending false notices.
Saying that 512(f) only applies to 512 takedown notices, and not 1201 takedown notices, is just another example of the inherent one-sidedness of the DMCA. For years we have pointed out the ridiculousness of 1201, in which mere advertising tools that can be used to circumvent a technical protection measure are considered copyright infringement in and of themselves – even if there is no actual underlying infringement. Given how sweeping 1201 is in favor of copyright holders, you’d think it only makes sense to say that false notices should face any small penalty under 512(f), but the judge here says “no.” As Goldman points out, this will only encourage people to send takedowns where they don’t directly cite 512, knowing that this will protect them from 512(f) responses.
Another quirk that Goldman also highlights: when we think of 1201 circumvention most of the time, we’re talking about the copyright holder themselves getting upset that someone is getting around the technical barriers they set up. But this case is different. YouTube created the technical barriers (I mean, it didn’t really, but that’s what the court says it did), but YouTube is not a party to the lawsuit.
So… this raises a pretty disturbing question. Can the RIAA (or any copyright holder) sue someone for a 1201 violation for to have someone come else’s technical safeguards? Because… that would be weird. But parts of this decision suggest that this is exactly what the judge intended.
Yes, some may argue that this tool is somehow “bad” and should not be allowed. I don’t agree, but I understand where the argument is coming from. But even if you believe that, it looks like a ruling like this could still lead to all kinds of damage for various third-party tools and services. The Internet and the World Wide Web were built to be modular. It’s pretty common for third-party services to build tools and overlays and extensions and whatnot to add features to certain websites.
It seems crazy that this ruling seems to suggest that it might violate copyright law.
Filed under: 512f, circumvention, copyright, dmca, dmca 1201, technical safeguards, video recording
Companies: riaa, yout, youtube
