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EFF and GitHub back Yout in stream-ripping dispute with the record companies

By | Published on Monday 13 February 2023


The Electronic Frontier Foundation and the Microsoft-owned developer platform GitHub have both submitted amicus briefs in support of stream-ripping site Yout in its ongoing legal battle with the US record industry.

Yout sued the Recording Industry Association Of America back in 2020 after the record industry trade group sought to have the stream-ripping service de-listed from Google search on copyright grounds. Stream-ripping – ie services that allow users to grab permanent downloads of temporary streams, often YouTube streams – has been a top piracy gripe of the music industry for sometime, of course.

In its lawsuit, Yout argued that it didn’t infringe any copyrights. Most stream-ripping services have made similar arguments, usually on the basis they don’t actually host any copyright infringing content, and there are legitimate as well as illegitimate uses of a stream-ripping site, for example a creator might want to rip some audio from their own video.

However, with the Yout v RIAA case, a specific aspect of US copyright law ended up in the spotlight. The US Digital Millennium Copyright Act prohibits the circumvention of technical protection measures put in place by content owners and/or digital platforms that exist to stop copyright infringement.

The RIAA argued that, by allowing people to grab permanent downloads of YouTube streams, Yout was circumventing YouTube’s technical protection measures.

For its part, Yout argued that YouTube doesn’t have any technical protection measures, because it’s actually possible to download content that is streaming on the Google video site via a web browser if you know what you’re doing.

But the RIAA successfully countered that the complexities involved in executing a manual download via a browser were in themselves technical protection measures, and Yout was circumventing them by simplifying the download process.

With the judge siding with the RIAA on that latter point, Yout’s lawsuit was dismissed and a precedent basically set that the stream-ripper’s service violates the DMCA. Yout is now appealing that decision via the US Second Circuit appeals court. It’s as part of that appeal process that both the EFF and GitHub have submitted filings with the court.

EFF – which often campaigns in favour of the users and operators of digital platforms in copyright disputes – argues that the lower court got it wrong when it interpreted the bit of the DMCA which talks about technical protection measures, Section 1201.

In his decision, the lower court judge, the EFF reckons, “adopted an extremely broad construction of a ‘technological measure that effectively controls access to a work’ that is not supported by statutory text or precedent”.

The EFF amicus brief hones in on the legitimate uses of services like Yout, which, it writes, “fulfil the same function that video cassette recorders once did: they enable ordinary people to make and retain copies of videos that have already been released to the world at large by their creators”.

“Like every reproduction technology – from the printing press to the smartphone – these programs, colloquially called ‘stream-rippers’, have important lawful uses as well as infringing ones. Video creators, educators, journalists and human rights organisations all depend on the ability to make copies of user-uploaded videos”.

“Copyright law ordinarily protects and promotes the lawful activities of these groups, through the fair use doctrine and other exceptions to copyright”, it goes on, “but overbroad application of Section 1201 effectively strips that protection away, making these lawful activities legally fraught and practically difficult in the digital age”.

“The RIAA and its member companies”, it then adds, “are engaged in a campaign to make stream-ripping tools a contraband technology, unavailable even to lawful users. The RIAA asserts that stream-rippers necessarily circumvent access controls on video-sharing sites like YouTube in violation of Section 1201, a position adopted by the district court in this case. That position is wrong”.

“The district court’s holding effectively applies the strictures of Section 1201 to any copy of a work in digital form, not just the subset that rightsholders have chosen to protect with technological means”, it argues. “Because the exceptions to Section 1201 are narrower and more conditional than the exceptions to copyright itself, the district court’s holding would increase legal and practical impediments to many lawful and important uses”.

That, the EFF concludes, would “be contrary to the copyright’s constitutional purpose”, and therefore the Second Circuit should take a different approach to the lower court.

“Text, legislative history, and precedent suggest clear limits on the definition of ‘technological measures’. YouTube’s user-uploaded video service and its web-based player fall outside those limits”.

In its amicus brief, GitHub says that it isn’t officially supporting either side in this dispute and that it “takes no position on the ultimate resolution of this appeal on the facts pled by Yout”.

However, it then basically supports Yout, stating that “the district court’s expansive interpretation of the DMCA’s anti-circumvention provision compels GitHub to point out how the court’s rationale needlessly threatens countless other software tools in widespread use”.

“Developers routinely design software that allows users to experience content in new and value-enhancing ways without express permission from a copyright owner”, it goes on.

“By interpreting the DMCA in a way that conflates measures controlling access to a work with measures controlling use of a work that is already publicly accessible, the district court’s ruling threatens to imperil the software developers who create those tools, ensnaring legitimate software within the DMCA’s reach and chilling technological innovation”.

With that in mind, GitHub’s briefing states, “the court should reject the district court’s flawed interpretation”.

So there you go. We await to see how the record companies respond.