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That YouTube is a great place to access free content is known by most. But is the extremely popular video-sharing website also the place to go to download? That’s a question provoking controversy and could set the stage for the industry’s next big copyright fight.
The subject of the developing battle is youtube-dl, a third-party software tool that enables its users to rip videos and songs from the Google-owned platform. Illegal? Not necessarily, say proponents of the tool. Section 1201 of the Digital Millennium Copyright Act prohibits circumvention of technological measures designed to protect access to copyrighted works. But if there’s no circumvention, then there’s no Section 1201 violation. And some are questioning whether YouTube has really presented roadblocks. Youtube-dl is “a lot like the videocassette recorders of decades past: a flexible tool for saving personal copies of video that’s already accessible to the public,” wrote Elliot Harmon and Mitch Stoltz of the nonprofit digital rights group Electronic Frontier Foundation in a November post.
EFF is now representing Github, a community of software developers. Upon a takedown notice by the Recording Industry Association of America, Github removed source code for youtube-dl, but then on Nov. 16, Github turned heads by restoring youtube-dl after EFF gave its opinion about the technology at hand. What’s more, Github made its stand by establishing a $1 million developer defense fund.
The developing fight has the potential to be a consequential one both for the entertainment industry and beyond. Section 1201 has been around for a quarter-century and has been explored a few times in court — most notably when the movie industry fought to ensure that no one cracked encryption and made permanent computer copies of DVDs and Blu-Rays. That said, copyright experts say that what constitutes an illegal “circumvention” is largely untested in American courts. What’s more, with auto owners, smart phone owners and others now complaining that copyright law prevents them from tinkering, Congress has taken a renewed interest in 1201. Recently, Sen. Thom Tillis (R-NC) has highlighted the need for reform, commenting, “I’m looking forward to our Section 1201 hearing this month because my sense is that we may need to tweak that provision to ensure that the exemptions adequately account for consumer concerns, including by allowing for third-party repair of software-enabled devices.”
As for the Section 1201 debate around youtube-dl, the conversation confronts so-called “stream-ripping,” a phenomenon that some in the industry worry will erode revenue. Given that streaming platforms have largely supplanted file-sharing hubs this century, it makes sense that access control has become a focal point. Taking steps like a crack down on password sharing is one part of the picture. The industry is also waging a quiet legal war against illegal streaming boxes, pirate IPTV and, now, rippers.
However, this latest debate is somewhat unusual as it involves some analysis of the underpinnings of a mainstream site like YouTube. And Google, which owns YouTube, is being very careful about speaking out on the subject, for it has the potential of disrupting its relationships in the content and technology space.
As EFF explains it, YouTube employs a “completely visible” mechanism in order to deliver video streaming to someone’s web browser. “To borrow an analogy from literature, travelers come upon a door that has writing in a foreign language,” explain EFF’s lawyers. “When translated, the writing says, “[S]ay ‘friend’ and enter.” The travelers say ‘friend’ and the door opens. As with the writing on that door, YouTube presents instructions on accessing video streams to everyone who comes asking for it.”
The RIAA has a completely different take on the technology at hand. As the RIAA sees it, YouTube’s coding is akin to the encryption on DVDs preventing anyone from storing a movie on their computer hard drive.
“EFF is misguided,” says Ken Doroshow, RIAA’s chief legal officer. “Youtube-dl and other programs that are designed to circumvent YouTube’s rolling cipher clearly violate Section 1201. Several courts in the EU have already ruled that the rolling cipher is an effective technological measure that controls access to copyrighted works. We are confident that U.S. courts would arrive at the same conclusion.”
YouTube may present a particularly low barrier to anyone who wishes to grab downloadable content, but as obvious as its coding may be, copyright holders say YouTube’s content system still represents something that must be deciphered in order to download. To borrow the EFF analogy, nobody’s saying “friend” to open YouTube’s door unless there’s a translator in tow to interpret the foreign language.
Thus far, two European courts have sided with the RIAA. The first in 2017 was a regional judge in Hamburg, Germany, who analyzed a service that ripped MP3s from YouTube. The judge granted the recording industry group’s requested injunction.
The second decision came in Denmark last March and may be most notable for including a declaration from a lawyer working inside Google’s German office. Although YouTube hasn’t publicly commented on the recent controversy surrounding youtube-dl, this Google attorney told the Danish court, “In order to prevent unauthorized downloads on a technical level, YouTube implements so-called ‘cipher’ technology to mitigate unauthorized access to YouTube content.”
(Also, Google isn’t above sending its own 1201 notices. Last month, for example, Google complained to Github about tools being used to get around Widevine, its digital rights management technology being used by Disney+, Netflix, Amazon Prime Video and others in distributing videos.)
Although Section 1201 of the DMCA has been around for almost a quarter-century, stream-ripping has only recently instigated lawsuits and the “average user” theory hasn’t been tested. (That said, there’s already an RIAA case concerning 1201 before the Supreme Court at the moment on the issue of jurisdiction.) Thus far, no defendant has mounted the type of truly vigorous pushback being teased by Github and EFF. That said, 1201 is a broadly written statute, and according to Sy Damle — a Latham & Watkins partner who formerly was general counsel for the U.S. Copyright Office — the statute “doesn’t require the protection measure to be particularly sophisticated.”
Aaron Moss, a partner at Greenberg Glusker, agrees, although he notes that past courts have previously ruled that if one uses a publicly available password, one isn’t circumventing access control measures.
Like other interested observers, Moss sees the rise of streaming platforms and those looking to rip a little extra access, and says, “1201, being more amorphous and less litigated that traditional takedown notices, is likely to become a new frontier in the cat and mouse game.”
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