RIAA: Not Even Improper YouTube ‘Rolling Cipher’ Complaints Can Be Countered

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In response to a lawsuit filed by YouTube-ripping service Yout, the RIAA is doubling down on its assertion that YouTube's rolling cipher is indeed an "effective technological measure" under the DMCA. The music industry group also states that seeking remedy for improper takedown notices under the DMCA is not possible since the relevant law does not penalize anti-circumvention complaints.

RIAAAfter the RIAA caused outraged by filing a complaint that took down the open source software YouTube-DL from Github, YouTube-ripping service Yout.com sued the music industry group.

In common with its claim against youtube-dl, the RIAA had previously asked Google to delist Yout.com’s homepage on the basis that it too circumvented YouTube’s ‘rolling cipher’ technology. With both Github and the EFF arguing that youtube-dl’s features amount to little more than those already available in web browsers, an emboldened Yout.com hoped to take the fight to the RIAA and have itself declared legal.

RIAA Fights Back: YouTube’s Rolling Cipher is a TPM

In a motion to dismiss filed in a Connecticut district court, the RIAA is now attempting to remove the basics underpinning the entire Yout.com action. Apparently undeterred by the controversy surrounding YouTube’s ‘rolling cipher’ and its characterization as being somewhat ineffective, the RIAA says that according to copyright law, the threshold for a Technological Protection Measure (TPM) is already low.

“[T]he allegation that Plaintiff or others with technical expertise have figured out how to defeat the rolling cipher does not establish that the rolling cipher is ineffective for purposes of section 1201. If Plaintiff’s position were correct, it would amount to a free pass because the statute would only apply to those TPMs that could not be defeated,” the motion reads.

“For this reason, numerous courts have rejected the same argument upon which Plaintiff bases its claim about the alleged ineffectiveness of the YouTube rolling cipher.”

In short, just because YouTube’s measures are easily bypassed, it doesn’t mean they can’t be considered effective. According to the RIAA, this is due to section 1201 of the DMCA considering the abilities of an “ordinary” or “average” consumer, not those of “an online security engineer with a background in computer science” – a reference to Mitch Stoltz of the EFF, who authored a third-party letter in the youtube-dl matter.

“[T]he letter acknowledges that a German court has concluded, among other things, that circumventing the YouTube rolling cipher is ‘beyond the capabilities of the average user,’ and that it ‘was on this basis that the court declared the code to be an effective technical measure under Germany’s analogue of Section 1201. Plaintiff’s allegations therefore allow for only one plausible inference: the YouTube rolling cipher is an effective TPM,” the RIAA adds.

RIAA: Yout’s Non Circumvention Claims Fail

Yout.com’s lawsuit seeks a declaration from the court that the service does not circumvent YouTube’s ‘rolling cipher’ but according to the RIAA, that effort should fail. Circumvention means “to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner,” the RIAA writes, noting that Yout’s claim that it does none of these things isn’t plausible.

Referencing Yout’s complaint, the RIAA notes that the company admits that its entire purpose is to give users the ability to copy audio from YouTube in MP3 format locally, allowing that content to be consumed offline. The RIAA says that YouTube aims to prevent users from “turning certain streams into downloads” and the method used to enforce that is its ‘rolling cipher’.

“Plaintiff concedes that it ‘encounters’ the rolling cipher and then ‘reads and interprets the JavaScript program’ and ‘derives a signature value’ to access the file,” the RIAA writes.

“The only reasonable inference to draw from those vague allegations is that the Yout service enables users to avoid or bypass that technological measure—that is the very definition of circumventing a TPM under section 1201. For this straightforward reason, Plaintiff cannot plausibly allege a claim for declaratory judgment under section 1201.”

RIAA: Even Improper Anti-Circumvention Notices Can’t Be Countered

As mentioned earlier, the RIAA previously sent DMCA takedown notices to Google, demanding that Yout URLs should be delisted from search results on the basis that the Yout service itself is a circumvention technology.

Yout’s lawsuit states that since it does not circumvent technical measures, the RIAA either sent the complaints without carrying out appropriate testing or already knew that the site was non-infringing. As a result, Yout is entitled to compensation due to the RIAA interfering with the relationships between Yout and its customers, partners, and potential users.

Not so, says the RIAA, as no claim is available under 17 U.S.C. § 512(f).

“Plaintiff’s claim fails as a matter of law because the statutory text makes clear that
section 512(f) penalizes only misrepresentations regarding alleged copyright infringement, but not misrepresentations regarding alleged circumvention,” its motion reads.

Citing the Arista Records, Inc. v. Mp3Board, Inc. case, the RIAA states that Section 512 “only penalizes copyright holders for knowingly materially misrepresenting ‘that material or activity is infringing.’ It does not provide a cause of action for knowingly materially misrepresenting [other claims].”

In other words, the RIAA believes it doesn’t matter whether the anti-circumvention notices were improper or otherwise since claims under Section 512 are limited to when there are misrepresentations of copyright infringement, not allegations of breaching technological measures.

Furthermore, even if Yout could state a claim for alleged misrepresentations, the RIAA says that the company has failed to plausibly allege that the music group knew that the Yout service did not circumvent YouTube’s ‘rolling cipher’.

“Plaintiff alleges that ‘Defendants failed to determine whether Yout’s software platform would, in fact, circumvent [YouTube’s rolling cipher] by testing the platform” with protected works. But purportedly failing to perform an adequate investigation is insufficient to establish a section 512(f) claim,” the RIAA adds.

As a result of the above and other issues that rest upon them, the RIAA believes that Yout’s first amended complaint should be dismissed by the court.

The RIAA’s motion to dismiss can be found here and here (pdf)


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