Most artists and music labels share their music with the public on YouTube, free of charge.
The popular video platform has become an important promotional channel that brings in billions of dollars of advertising revenue every year.
The success story has a downside, however. Millions of people use so-called stream-ripping websites to download music tracks from YouTube, without permission. YouTube’s terms and service prohibit this activity but there are hundreds of online tools through which people can easily ‘rip’ and download content from the site.
Music companies, often represented by the RIAA, are actively cracking down on what they see as major piracy threat. Some operators of these stream-ripping tools disagree, pointing at the variety of legal use cases instead.
Yout vs. RIAA
At the end of 2020, the operator of one of the largest stream-rippers took matters into his own hands. Instead of hiding in the shadows like some of his competitors, Yout.com owner Johnathan Nader sued the RIAA, asking a federal court in Connecticut to declare his service non-infringing.
Last fall, the district court decided to dismiss the matter, handing a win to the RIAA. Judge Stefan Underhill ultimately concluded that Yout had failed to show that it doesn’t circumvent YouTube’s technological protection measures. This also rendered the associated defamation and business disparagement claims moot.
Yout did not give up on the case. Nader opted to appeal the verdict as he believes that YouTube rippers don’t violate the DMCA. After the RIAA’s request for legal fees was denied, Yout’s attorneys filed their opening brief at the Court of Appeals for the Second Circuit in February.
This case essentially revolves around two questions, to which both parties have completely different answers. These questions will ultimately determine whether Yout and similar stream-ripping services operate legally.
– Does YouTube employ a technological measure that effectively controls access to copyrighted works?
– If the answer is yes, does the Yout service circumvent these controls?
In its opening brief, Yout previously went into great detail to show that YouTube doesn’t have any effective protection measures. The stream-ripper wasn’t alone in this assessment; the site received support from both GitHub and the Electronic Frontier Foundation (EFF), who filed supportive Amicus Curiae briefs.
Copyright Alliance Backs RIAA
Earlier this month, the RIAA replied to these arguments in a detailed answering brief. According to the music industry group, Yout is an “illicit stream-ripping service” that effectively allows people to “bypass YouTube’s technological restrictions” that prevent downloading of works streamed through YouTube.
The RIAA is not alone in this assessment. Late last week, the Copyright Alliance submitted an amicus curiae brief in support, asking the Court of Appeals not to change the lower court’s verdict.
The Copyright Alliance is a non-profit that represents rightsholders across the board and has strong connections with industry groups. In its amicus brief, the public interest group warns that reversing the current court ruling will have devastating consequences.
“Yout’s illegal, stream-ripping software is a significant threat to copyright holders and ultimately the public. If this Court adopts the arguments of Yout and its amici, protection for numerous business models will be devastated, resulting in less, not more, public access to copyrighted works,” the Copyright Alliance writes.
The Copyright Alliance provides a detailed overview of the DMCA’s legal history and says that Congress intended Section 1201’s ‘circumvention’ safeguards to protect free expression, not to harm it.
Supporters of YouTube downloading tools may argue that the technology can foster creativity, but the Copyright Alliance argues the opposite. They believe that unbridled access to copyrighted content will ultimately lead to less output from creators, hurting free expression.
“Massive infringement impedes free expression in several ways. Deprived of a fair return, copyright owners have less incentive to create and to disseminate expressive works, especially in digital formats.
“Moreover, the specter of rampant piracy inhibits copyright holders from creating or partnering with new platforms and services that can offer the consuming public broader access to creative works,” the Alliance adds.
‘Rube Goldberg-like Process’
The brief stresses that Yout clearly violates the DMCA’s anti-circumvention provision and that all counterarguments fall flat. This includes the notion that YouTube’s technical protection measures are not at all effective.
The stream-ripper backed up this point by showing that anyone can easily download YouTube audio and video through a regular browser, without the need for special tools. However, this ‘Rube Goldberg-like‘ multi-step process doesn’t help its argument, the Copyright Alliance notes.
“Yout’s contrived attempt to show that YouTube users already have access to copyrighted works via a convoluted, Rube Goldberg-like process actually refutes the ‘lack of effectiveness’ argument.
“Without question, Yout’s service flouts the express terms and the crucial purpose of Section 1201, all to the ultimate detriment of the consumer,” the brief adds.
‘Rehashing Stale Arguments’
Yout and the amicus brief from EFF also stressed that stream-ripper tools have many legal and fair use purposes. For example, they are vital for some reporters and useful to creatives who use them for future work.
The stream-ripper argued that its service can be equated to a video recorder, citing the Betamax case. Downloading content from YouTube is nothing more than “time shifting”.
The Copyright Alliance refutes these arguments as well, pointing out that they fall flat as these lines of reasoning have been repeatedly defeated in courts.
“The position of Yout and EFF in this lawsuit is nothing more than another in a decades-long pattern of raising legally baseless court challenges to the DMCA,” the Alliance writes. “These arguments merely rehash stale, erroneous arguments that courts have rejected for decades.”
Whether the appellate court will agree with these arguments has yet to be seen. While circumvention cases are not new, none of these U.S.-based cases have looked at Youtube-ripping in detail.
A copy of the Copyright Alliance’s Amicus Curiae brief calling for an affirmation of the lower court’s decision in favor of the RIAA is available here (pdf)