In 2016, the International Federation of the Phonographic Industry published research which claimed that half of 16 to 24-year-olds use stream-ripping tools to copy music from sites like YouTube.
While this might not have surprised those who regularly participate in the activity, IFPI said that volumes had become so vast that stream-ripping had overtaken pirate site music downloads. That was a big statement.
Probably not coincidentally, just two weeks later IFPI, RIAA, and BPI announced legal action against the world’s largest YouTube ripping site, YouTube-MP3.
“YTMP3 rapidly and seamlessly removes the audio tracks contained in videos streamed from YouTube that YTMP3’s users access, converts those audio tracks to an MP3 format, copies and stores them on YTMP3’s servers, and then distributes copies of the MP3 audio files from its servers to its users in the United States, enabling its users to download those MP3 files to their computers, tablets, or smartphones,” the complaint read.
The labels sued YouTube-MP3 for direct infringement, contributory infringement, vicarious infringement, inducing others to infringe, plus circumvention of technological measures on top. The case was big and one that would’ve been intriguing to watch play out in court, but that never happened.
A year later in September 2017, YouTubeMP3 settled out of court. No details were made public but YouTube-MP3 apparently took all the blame and the court was asked to rule in favor of the labels on all counts.
This certainly gave the impression that what YouTube-MP3 did was illegal and a strong message was sent out to other companies thinking of offering a similar service. However, other onlookers clearly saw the labels’ lawsuit as something to be studied and learned from.
One of those was the operator of NotMP3downloader.com, a site that offers Free MP3 Recorder for YouTube, a tool offering similar functionality to YouTube-MP3 while supposedly avoiding the same legal pitfalls.
Part of that involves audio being processed on the user’s machine – not by stream-ripping as such – but by stream-recording. A subtle difference perhaps, but the site’s operator thinks it’s important.
“After examining the claims made by the copyright holders against youtube-mp3.org, we identified that the charges were based on the three main points. [None] of them are applicable to our product,” he told TF this week.
The first point involves YouTube-MP3’s acts of conversion, storage and distribution of content it had previously culled from YouTube. Copies of unlicensed tracks were clearly held on its own servers, a potent direct infringement risk.
“We don’t have any servers to download, convert or store a copyrighted or any other content from YouTube. Therefore, we do not violate any law or prohibition implied in this part,” NotMP3downloader’s operator explains.
Then there’s the act of “stream-ripping” itself. While YouTube-MP3 downloaded digital content from YouTube using its own software, NotMP3downloader claims to do things differently.
“Our software doesn’t download any streaming content directly, but only launches a web browser with the video specified by a user. The capturing happens from a local machine’s sound card and doesn’t deal with any content streamed through a network,” its operator notes.
This part also seems quite important. YouTube-MP3 was accused of unlawfully circumventing technological measures implemented by YouTube to prevent people downloading or copying content. By opening up YouTube’s own website and viewing content in the way the site demands, NotMP3downloader says it does not “violate the website’s integrity nor performs direct download of audio or video files.”
Like the Betamax video recorder before it that enabled recording from analog TV, NotMP3downloader enables a user to record a YouTube stream on their local machine. This, its makers claim, means the software is completely legal and defeats all the claims made by the labels in the YouTube-MP3 lawsuit.
“What YouTube does is broadcasting content through the Internet. Thus, there is nothing wrong if users are allowed to watch such content later as they may want,” the NotMP3downloader team explain.
“It is worth noting that in Sony Corp. of America v. United City Studios, Inc. (464 U.S. 417) the United States Supreme Court held that such practice, also known as time-shifting, was lawful representing fair use under the US Copyright Act and causing no substantial harm to the copyright holder.”
While software that can record video and sounds locally are nothing new, the developments in the YouTube-MP3 case and this response from NotMP3downloader raises interesting questions.
We put some of them to none other than former RIAA Executive Vice President, Neil Turkewitz, who now works as President of Turkewitz Consulting Group.
Turkewitz stressed that he doesn’t speak for the industry as a whole or indeed the RIAA but it’s clear that his passion for protecting creators persists. He told us that in this instance, reliance on the Betamax decision is “misplaced”.
“The content is different, the activity is different, and the function is different,” Turkewitz told TF.
“The Sony decision must be understood in its context — the time shifting of audiovisual programming being broadcast from point to multipoint. The making available of content by a point-to-point interactive service like YouTube isn’t broadcasting — or at a minimum, is not a form of broadcasting akin to that considered by the Supreme Court in Sony.
“More fundamentally, broadcasting (right of communication to the public) is one of only several rights implicated by the service. And of course, issues of liability will be informed by considerations of purpose, effect and perceived harm. A court’s judgment will also be affected by whether it views the ‘innovation’ as an attempt to circumvent the requirements of law. The decision of the Supreme Court in ABC v. Aereo is certainly instructive in that regard.”
And there are other issues too. While YouTube itself is yet to take any legal action to deter users from downloading rather than merely streaming content, its terms of service are quite specific and seem to cover all eventualities.
“[Y]ou agree not to access Content or any reason other than your personal, non-commercial use solely as intended through and permitted by the normal functionality of the Service, and solely for Streaming,” YouTube’s ToS reads.
“‘Streaming’ means a contemporaneous digital transmission of the material by YouTube via the Internet to a user operated Internet enabled device in such a manner that the data is intended for real-time viewing and not intended to be downloaded (either permanently or temporarily), copied, stored, or redistributed by the user.
“You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of YouTube or the respective licensors of the Content.”
In this respect, it seems that a user doing anything but real-time streaming of YouTube content is breaching YouTube’s terms of service. The big question then, of course, is whether providing a tool specifically for that purpose represents an infringement of copyright.
The people behind Free MP3 Recorder believe that the “scope of application depends entirely on the end users’ intentions” which seems like a fair argument at first view. But, as usual, copyright law is incredibly complex and there are plenty of opposing views.
We asked the BPI, which took action against YouTubeMP3, for its take on this type of tool. The official response was “No comment” which doesn’t really clarify the position, at least for now.
Needless to say, the Betamax decision – relevant or not – doesn’t apply in the UK. But that only adds more parameters into the mix – and perhaps more opportunities for lawyers to make money arguing for and against tools like this in the future.