In October 2020, the RIAA caused outrage by taking down YouTube-ripping tool youtube-dl from GitHub.
The RIAA cited the anti-circumvention provisions of the DMCA, claiming that the tool could be used to download their artists’ musical works from YouTube, in breach of copyright.
With little supporting case law in the United States, the RIAA referenced a decision from the Hamburg Regional Court in a similar case, which found that YouTube’s “rolling cipher” should be considered an effective technological protection measure under EU law. Any attempt to circumvent it, therefore, would amount to infringement.
Nevertheless, GitHub later restored the software and placed $1m in a takedown defense fund.
Threats Were Also Sent to Others
While the RIAA’s effort to take down youtube-dl from GitHub grabbed all the headlines, moves had already been underway weeks before that in Germany. Law firm Rasch works with several major music industry players and it was on their behalf that cease-and-desist orders were sent to local hosting service Uberspace.
The RIAA complained that the company was hosting the official youtube-dl website although the tool itself was hosted elsewhere.
“The software itself wasn’t hosted on our systems anyway so, to be honest, I felt it to be quite ridiculous to involve us in this issue anyway – a lawyer specializing in IT laws should know better,” Jonas Pasche from Uberspace said at the time.
Now Comes a Lawsuit
In emailed correspondence today Uberspace informed TorrentFreak that, following the cease-and-desist in October 2020, three major music labels are now suing the company in Germany.
In their complaint, Sony Entertainment, Warner Music Group and Universal Music broadly maintain the framework outlined in their earlier cease-and-desist notice (pdf, via NetzPolitik), which referenced the decision handed down by the Hamburg Regional Court via a preliminary injunction in another case in 2017.
According to the labels, youtube-dl poses a risk to their business and enables users to download their artists’ copyrighted works by circumventing YouTube’s technical measures. As a result, Uberspace should not be playing a part in the tool’s operations by hosting its website if it does not wish to find itself liable too.
Does The Lawsuit Have Legs and What’s its Purpose?
“We don’t think the suit is justified,” says Uberspace chief Jonas Pasche in comments to TorrentFreak.
“YouTube has measures to prevent users from downloading specific content, which they make use of for YouTube Movies and Music: DRM. They don’t use that technology here, enabling a download rather trivially. One may view youtube-dl as just a specialized browser, and you wouldn’t ban Firefox just because you can use it to access music videos on YouTube.”
According to an Uberspace lawyer, the aim of the lawsuit is to achieve some kind of precedent or “fundamental judgment”. Success could mean that other companies could be obliged to take action in similarly controversial legal situations.
And the alleged illegality of youtube-dl is indeed controversial. While YouTube’s terms of service generally disallow downloading, in Germany there is the right to make a private copy, with local rights group GEMA collecting fees to compensate for just that. Equally, when users upload content to YouTube under a Creative Commons license, for example, they agree to others in the community making use of that content.
“Even if YouTube doesn’t provide video download functionality right out of the box, the videos are not provided with copy protection,” says former EU MP Julia Reda from the Society for Freedom Rights (GFF) to NetzPolitik.
“Not only does YouTube pay license fees for music, we all pay fees for the right to private copying in the form of the device fee, which is levied with every purchase of smartphones or storage media,” says Reda.
“Despite this double payment, Sony, Universal and Warner Music want to prevent us from exercising our right to private copying by saving YouTube videos locally on the hard drive.”
The question of whether YouTube’s “rolling cipher” is (or is not) a technical protection measure is currently the hot and recurring topic in a lawsuit filed by YouTube-ripping site Yout.com against the RIAA in the United States. After more than a year, the warring factions are no closer to an agreement.