The RIAA’s attack on YouTube-dl is not a DMCA 512 infringement
joindiaspora.com
joindiaspora.com
On one hand people tend to side with youtube-dl, because everybody claims they did nothing wrong. But it can be argued that the testsuite (and CI pipeline) is the responsibility of the person who implemented. And I agree with that point.
From youtube-dl's perspective, this is an unnecessary attack surface that can be easily removed. I mean, this was bound to happen at some point, don't kid yourself.
With a project so big, I think it is irresponsible to not care for its legality. I mean, they could have just prevented this with a supersimple fix.
0. Use only CC licensed content in testsuite. If necessary, open up your own youtube-dl-tests channel and upload a video of your dog or cat. It just takes less than an hour.
1. Implement a license check, required by all plugins. Default to proprietary if none given. If proprietary, provide a url to Terms Of Service.
2. Let the end user manually confirm that the license is XYZ once it is proprietary and not public domain or CC based. Do this with every download.
3. Introduce a CLI flag like "--agree-to-license" in order to skip that.
4. Document this under legal compliance in the readme, and state that youtube-dl does in good faith try to comply with legal requirements, but that the responsibility is the action of its users that it cannot influence.
Boom. Plausible deniability, and RIAA would have not a single basis for the case.
I mean, this would have been so easy to implement. I don't understand why this wasn't integrated.
These videos were never fully downloaded anyways; they are automated test cases where the test just downloads the first 10KB, which amounts to a couple of seconds at most. This is certainly fair use.
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First off: Fair Use does not exist. It is an assumption, not a defined situation as it requires legal evaluation in court to apply. And on top of that: It is a regional difference and is therefore completely unpredictable whether it applies or not.
Assuming fair use on a platform with a proprietary license that even forbids downloading, while downloading proprietary content specifically to circumvent copyright protection, while fair use does only exist as a "possibibility" inside, and only inside, the US and only after a legal case was decided in at least state level court ... really?
You get sued for downloading 512kB of porn illegaly, just as you can get sued for downloading 10kB of copyrighted youtube videos.
As I said, this was just a suggestion to remove that attack surface. Another attack surface is the trademark violation, but that's a different case.
-- 17 U.S. Code § 107 - Limitations on exclusive rights: Fair use
Is circumventing a copyright mechanism an educational or journalistic purpose? In a testsuite? ...
Even when siding with you, you would need a court case to evaluate whether fair use applies or not.
Again, as I said, unnecessary attack surface. I don't care whether you or I am right or wrong. Nobody of us can be right unless a court case has been made.
It's unnecessary and could have been prevented.
You might wish to show the sportsmanship of admitting your previous error before embarking on further ones.
Therefore I still think that the assumption of Fair Use to apply is wrong. However, the assumption of copyright to apply on the other hand is correct.
But, referring to whether fair use exists or not, I agree with you that technically it exists.
But as the rest of the very same law criminalizes by default, you can still not refer to fair use if you do not have the required-by-law evidence at hand for it to apply.
I think that fair use is almost always nearly impossible to prove, that's why I wrote my statement like this. And I agree that it was worded badly.
If I claim you violated my copyright and you disagree, it will be determined in court. If I claim you violated my copyright and you claim it's fair use, and I disagree, it will be determined in court.
What's the difference?
Your claim is contradicted by statute.
https://www.law.cornell.edu/uscode/text/17/108
Yes, Fair Use is an affirmative defence, not an automatic get-out-of-jail-free card. I clearly state this in the article. (Author)
we hold — for the purposes of the DMCA — fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses. We conclude that because 17 U.S.C. § 107 created a type of non-infringing use, fair use is "authorized by the law" and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c).
-- 9th Circuit
https://scholar.google.com/scholar_case?case=125676491686801...
(I have a friend who makes a living as a choral composer. Churches, he finds, are the biggest thieves! They believe they don't have to pay for music because they're a Church.)
https://en.wikisource.org/wiki/Copyright_Act_of_1976#%C2%A7_...
Further recommended reading: Lenz v. Universal Music Corp.
-- Lenz v. Universal Music Corp., 801 F. 3d 1126 - Court of Appeals, 9th Circuit 2015
https://scholar.google.com/scholar_case?case=125676491686801...
look... i love the project and everything, but philip is just plain in the wrong and doesn't want to admit it.
That averred infringement is a specific claim. Though weak, it's the strongest specific claim RIAA makes.
Hagemeister's comment establishes that minimal copying is performed in the testing itself, contrary to RIAA's claim.
The infringement does not occur in the source code or test suite itself, it occurs inccidental to testing functionality of the software (that is, it is inherently functional, not expressive), the copies made fall within existing limitations to exclusive rights (§112, §117, §512(a) and (b)), and tests (1), (3), and (4) of §107 fair use.
RIAA's standing on anti-circ §1201 is separate from this question, poorly justified, and likely lacks standing.
"Hagemeister's comment establishes that minimal copying is performed..."
bottom line... they are still downloading and copying the file, regardless of what for or how much which is exactly what the RIAA is claiming. you can cite whatever it is you want, the fact is that youtube-dl is DEAD wrong in what they are doing.
The third test is "the amount and substantiality of the portion used in relation to the copyrighted work as a whole".
https://www.law.cornell.edu/uscode/text/17/107
Again, Hagemeister establishes that a bare minimum copying is performed, sufficient to verify code function. A fact which would overwhelmingly tend to a fair use finding.
you can cite whatever it is you want, the fact of the matter is, that those test cases are going to seal their doom. any lawyer worth their salt can use those as evidence of them writing specific code to target and bypass security protections so they can download copyrighted works.
i can guarantee within the upcoming weeks we will see a lawsuit filed against everyone involved in youtube-dl... and guess what, they are going to lose that case.
From TFA.
Doesn't this apply to all browsers too? A browser has to actually download the copyrighted work to play it back, regardless whether it's "streaming" it or not. Chunks of the file get downloaded and those protections will have to be bypassed to be able to play it back, no?
We know that different media players rely on youtube-dl to be able to play back videos from YouTube. Are they not allowed to be able to play back YouTube content then?
Any statement that includes this phrase can be ignored as bad legal advice.
This doesn't make any sense to me as an attack on a fair use defense.
Fair Use is, by definition, an affirmative defense against copyright infringement. To invoke it, you assume (even if arguendo) that the copying did take place. Fair Use is a legal justification of the copying, not an argument that copying did take place.
So, pointing out that copying took place and spiking the football as if that's the end of the conversation is nonsensical if you're arguing against a Fair Use defense.
And the intent of tests is to test the functionality of this software.
The issue is that they were testing the ability to download music videos in the first place, meaning that the tool was intended at least in part to download music videos subject to copyright.
1~4. youtube-dl isn't just a user facing tool, it is a library and tool that lots of other software shells out to, e.g. so you can play YouTube videos from your favorite standalone player in better quality than using a web player. Integrating ToS links and extra user interaction into that isn't trivial.
Legality is not an option. It is a necessity, by definition.
One is that people often mix political and legal matters in colloquial discussions of such topics. I frequently catch myself doing it too.
It is clearly not in the interest of most people for functionality that youtube-dl offers to be illegal. In fact, most of the time it isn't really illegal, in a de facto sense, since it is never acted upon and prosecuted.
However, sometimes a shady organization such as the RIAA acts upon this legal grey area and tries to push the needle in its own direction. When people then say "There is actually nothing wrong with this, this is definitely not illegal.", they are actually making a political statement without realizing. They are really saying: this shouldn't be illegal because it makes no sense that it is so. Since people actually hold all the power, this act makes this the reality in a way, but in order for this to completely materialize, the will of the people must first be focused so that it is reified into law.
The other problem is that the world is not the US and there are many jurisdictions where circumventing copyright protections and/or downloading a media file for personal use are not problematic at all. This fact also often seeps into the discussion, but sometimes only implicitly, so people often talk past each other.
And all of the required measurements in order to apply fair use are almost impossible to prove, therefore it is an unlikely case to win in court.
I agree with the political sentiment in this discussion, and I have a biased opinion, too - but when talking about pushing the needle in a specific direction the maintainers of youtubedl did a bad job at doing so.
I mean, they have one of the most powerful industries siding against them, with nearly unlimited funding, so it is obvious that this was bound to happen and they should have been more careful.
Especially when they, as a project, cannot afford lawyers to fight potential battles in court.
That's why I described it as an unnecessary attack surface, because that's what it is.
Don't give them reasons to push the needle.
That's just a reason to not pay them anything ever even you find it desirable, they are obviously incapable to handle the money, powerful and incompetent is just too malicious.
The music industry through RIAA are aggressive and may be punching above their weight class in litigation and lobbying, but remember that they are not really that large in the grand scheme of things. Certainly not in the class of juggernauts like oil, medicine etc.
https://www.riaa.com/reportcat/sales-revenue/ says the US music industry had $11.1 billion in revenue for 2019, a fraction of many large tech companies.
There are countries where fair use is always permitted unless a court decision prohibits it in that single case.
It isn't illegal. Copyright protects the video/audio content, not the hyperlink. You would have to establish ytdl induces infringement. Grokster induced infringement. An automated test does not induce infringement.
Many people are pointing to those links as evidence that youtube-dl was intended to be a tool for piracy (under the assumption that downloading videos from YouTube is automatically a DMCA violation, which I'm not fully convinced of).
Publishing the software anonymously on hidden servers (say, Tor onion Services) is not an option. It is a necessity, by definition, because the legal system will f*k you up.
It is extremely important to recognize in all this that as a country formed during the enlightenment, the founders of the US understood the importance information sharing holds for a free society. Copyright is intended to protect against wonton plagiarism and illegal redistribution. Fair use provisions exist to prevent abuse of this system and allow for legal redistribution and derivative works. These concepts. Patents and copyrights are at their core, systems designed to encourage distribution, not restrict it. Groups like the RIAA, Disney, the MPAA, and others are chipping away at this.
Fair use isn't some magic pixie dust that lets you do whatever you want with someone else's copyrighted material.
Fair use is a defense you can raise in court, _after_ you have been sued. It is not a presumptive right.
The U.S. Supreme Court has traditionally characterized fair use as an affirmative defense, but in .. (2015) .. U.S. Court of Appeals .. concluded that fair use was not merely a defense .. but was an expressly authorized right, and an exception to the exclusive rights granted to the author of a creative work by copyright law.
Fair use is still a defense to copyright violations, not a right. The 9th Circuit did not hold that fair use was a right in that case (the dancing baby case), only that a copyright holder must consider whether the alleged violation was potentially fair use before filing a lawsuit.
Importantly, the copyright holder is only required to consider whether the violation is fair use. They can still decide that it is not, and proceed with their lawsuit, with the only additional effort required being to state in their claim that they considered fair use and decided that the violation was not fair use.
(Note: while the 9th Circuit precedent is limited to the West Coast of the US, because most tech companies are HQ'd in CA or WA, so as a practical matter this case governs the internet.)
We hold that the statute requires copyright holders to consider fair use before sending a takedown notification, and that failure to do so raises a triable issue as to whether the copyright holder formed a subjective good faith belief that the use was not authorized by law. [2]
Note that the case was about abuse of DMCA takedowns by copyright holders if not considering fair use. Judge considers fair use as authorized by law, which I would interpret as right, not defense.
Another quote: We agree with the district court and hold that the statute unambiguously contemplates fair use as a use authorized by the law. [2]
Fair use is not just excused by the law, it is wholly authorized by the law [2]
From previously quoted wikipedia article, the paragraph continues:
"Fair use is therefore distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright." [1]
As for plaintiff considerations, IMO, of course plaintiff is required to argue it's standing, otherwise the case is thrown out, or in this case DMCA is abused. Normally the first bar is to make a coherent argument, then the court gets to decide whether your opinion is right, but that does not lower the defendant's rights to a "defense", even if they are a defense.
[2] Court's decision, hopefully: https://scholar.google.com/scholar_case?case=125676491686801...
In order to comply with the strictures of § 512(c)(3)(A)(v), a copyright holder's consideration of fair use need not be searching or intensive. We follow Rossi's guidance that formation of a subjective good faith belief does not require investigation of the allegedly infringing content
As for the quote, Fair use is not just excused by the law, it is wholly authorized by the law
The court is referring to 17 USC 107. Fair use exists in the context of whether something is a violation of copyright, in the same sense that self-defense is authorized by the law but is still a defense to criminal charges. Notably, I didn't call it an affirmative defense because it is not one.
It meets at least 2 of the fair use factors:
1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2) the amount and substantiality of the portion used in relation to the copyrighted work as a whole;
> Fair use isn't some magic pixie dust that lets you do whatever you want with someone else's copyrighted material.
I didn't claim it was? I said this specific use seems to be a fairly good example. See above factors.
> Fair use is a defense you can raise in court, _after_ you have been sued. It is not a presumptive right.
Not correct. This has been challenged in court and it was found that fair use is a right and not simply a defense.
Can you take a few seconds of a video and show it to a class of students for educational purpose?
Yes, you can
Can you do the same to test a software feature?
Yes, you can
The video is never used or displayed for its commercial value, but only to learn something from it.
it sure is on my end
Mildly off topic and poor timing I guess, but can you recommend any?
This comment is my personal opinion, not legal advice, and in no way relates to my employment.
what is the purpose of this obfuscation? I mean if it is to hide the licensed content then legally speaking it doesn't sound like a great argument.
So to have a "nice" youtube-dl, just remove those tests and more importantly the DRM removal (not sure it will benefit RIAA in long term though...)
The reality is that there is no "circumvention of protection measures", like RIAA is claiming. Youtube provides a javascript to decrypt their cipher, youtube-dl runs it just as intended and that's it, that's just what a normal browser does.
From a technical (code) perspective, obfuscation may be an inadequate protection. But legally, the DMCA only requires some technical measure, and obfuscation satisfies that requirement. It is irrelevant that youtube-dl waits until after Youtube decrypts the content, since the law as written is agnostic to the specific technical details of how copyright protection schemes are implemented.
If this is truly the case, then every web browser that can access YouTube and supports JavaScript is guilty as well.
It's like distributing an encrypted video along with a python script that decrypts it and then saying that anyone who executes that script on linux is circumventing the copy protection. It's ridiculous.
Youtube-dl will not win this argument based on technical details on how content is provided by a licensee to an end user. That's irrelevant to how copyright law works. The entire history of copyright law has been about preventing the unauthorized copying of protected works through technical means, so copyright laws are deliberately agnostic to how the technical details are implemented. In the case of the DMCA, all that is required is that some technical effort went into restricting the unauthorized copying of licensed content.
A lot of HN commenters have pointed out that the technical efforts were quite simple: obfuscating the name of the cache file in the browser's cache folder. But for legal purposes that is sufficient. And if it's not, then in the very near future Youtube will no longer store RIAA music videos (or possibly any content) in an accessible cache folder, and congratulations: youtube-dl (and its competitors) won't work at all for it's namesake site.
I have no idea how American courts usually work, but what a given program actually does seems pretty relevant to me, if you allege something like that. But I guess that's just my opinion and the American law really is that fucked. Thanks for your answer.
No, they don't willingly give someone a dedicated tool that decrypts the content. Youtube simply does that for expediency.
The end result if youtube-dl wins on these technical access grounds is that Youtube will be forcedby the RIAA and other content licensors to stop caching content in accessible form. Youtube-dl will win the battle and lose the war.
I might be missing something, but I'm not sure what's the caching thing is about. YouTube tells you under what URL you can access the specific video or audio file, you download it and that's it. Whether the downloaded data is saved to a file or temporarily stored in RAM or whatever is up to the client. And the way everything is structured right now, I really can't see any other way they could do it without creating some kind of proprietary YouTube client.
The next step is probably go with Widevine: but YouTube probably doesn’t want to go there unless it has to.
- mediaswak
- mediablade
- sonicscrewdriver (say, "ssdr" for short)
- mediamultitool (mmt)
- webMediaFlexiTool (wmft)
Creativity is about what can I do. Legal caution is about what can't I do.
But it brings up a side point in my mind -- how interesting is it that sometimes, a company, or university will have someone in their administration who cares enough to say, we're going to take this on, and not roll over? Or be willing to say, "even though this is a small annoying cost to us individually, this nuisance is taking $B across everyone and should be stopped".
That's a very rare thing to see. I remember only a couple of times this has gotten to the news in a major way:
-- When Newegg took those patent trolls to court
-- When Caltech, or was it MIT/Harvard took the MPAA to court to say that they are not responsible for their students' hosting of content
I.e. not some non-profit or foundation dedicated to the topic, but an actual business that goes out of its way (and at cost to itself) to fight something. I'm sure others can give better examples. (And perhaps I'm not aware, but some industry association also helps back the lawsuit financially?)
But still, it takes some kind of courage of legal counsel, probably with backing of the CEO or president of the company, to take stands like this and actually make it a big deal and push back.
Funny how personality and individuals at corporations can still show through what you would think is otherwise bland legal daily life. I almost take that as more of a brand equity enhancement / reason that a company gains in reputation than sometimes its products. Or maybe it's those companies that have strong culture and brand that choose (or have the strength) to do this.
Anyway, the story just made me reflect on that.
I think it won't be an overstatement to say that RIAA and MPAA are the scourge of the online services industry. If you host any kind of UGC and your product gets any semblance of popularity, it's only a matter of time before they try to come after you. It then comes as no surprise that many people in the industry hate these organizations with burning passion.
University of California vs Elsevier (academic journal publisher), over wanting free open access for the public to their published research.
Epic Games vs Apple, over wanting developers & users to have more options and freedoms on a closed platform.
I think it’s really special when an organization is able to say “yes this impacts us specifically in a small way, but it impacts the greater community in a much larger way — we have the resources and will take a stand.”
Whether you agree with the organizations or not, I just think the act of doing something like that is special.
The apple store is a golden garrote on the ios platform. I don't have to pay 45% more for software to use on device I own.
Being able to run whatever you want on hardware you own should he a legal requirement let alone a company of Epic's size having to fight it out legally.
All I said is that Epic Games did not file the suit purely out of the goodness of their hearts, the desire to make the world a better place, and despite their own wallets. They are doing this for themselves. It doesn't mean the results can't be good, but it does mean it shouldn't be on a list of lawsuits filed for purely altruistic reasons with no selfish motives.
Like, the UC system was paying extraordinary amounts of money for their access to that publishing platform, and the platform wanted even more for the privilege of making the articles free to the public. There was a selfish incentive there too (10s of millions of dollars). Even though they had plenty of money to just pay the fee, they could argue that they were financially benefitting themselves while also helping the entire academic community. I don’t think businesses/organizations would ever do something totally altruistically without some inward benefit.
I think the math for Epic Games leans more selfishly in their lawsuit than many others, but I don’t think the motivations were entirely selfish either. It’s possible that I’m wrong though.
Probably, EFF would do that.[0]
FTR, EFF is the Electronic Frontier Foundation:
> We're the Electronic Frontier Foundation. We defend your civil liberties in a digital world.
[1] Under the "time equals money" assumption. If political activism brings you joy or counts as leisure time, the trade-off might change.
Furthermore, if you are in any way funded by advertising or "engagement" (which is again, the majority of big user-facing tech today), I don't think messing with the RIAA or MPAA is a good strategy. Your advertisers depend on them more than on you, and if the RIAA informally "suggests" them to go to a different ad publisher they totally would.
No major IT company is going to get anywhere near this. Successfully defending this wouldn't really benefit the company (it's not like winning this upcoming lawsuit would absolve you of copyright, so that problem will remain - plus if you need to license content the now angry RIAA will be less likely to give you a good deal), might actually harm the company's own attempt at a walled garden, and would piss off a powerful industry that can influence your only funding source.
[1] https://github.com/go-gitea/gitea/issues/1612
[2] https://github.com/go-gitea/gitea/issues/9045
[3] https://gitlab.com/gitlab-org/gitlab/-/issues/6468
Fortunately the Ethereum development community has a unified focus right now.
The only thing blockchain folks are doing really reliably is scamming the hell out of people.
Wouldn't it be better to crowdfund a suit for a knowingly false claim? Or lobby the powers that be to improve things to remove "knowingly" from the text?
IMO we should do both.
The money's to grease the wheels, to get your argument to the right people, etc.
Are only gui based webbrowsers with large market share the only legal way to access multimedia content?
Lynx is a browser for the terminal, am I not allowed to open up multimedia links present either with an external program that displays it in a console framebuffer or converts it to ascii art?
What about mpv which uses youtube-dl in the background to play a video?
What about a container/plugin that uses mpv to play a video in a webbrowser?
Ultimately, you can capture media directly from the media output. If you build software or hardware that make the process easy for a significant number of people, the lawyers will come after you.
I believe they are the only supported way to access content on YouTube. As for whether the unofficial ways to access YouTube are legal, that depends on whether they circumvent a “technological measure that effectively controls access” [1] to copyrighted works. That’s not so clear, but YouTube does obfuscate its code to make the task of tools like youtube-dl harder.
Not for tools like youtube-dl, but for tools that let user manually extract links, such as viewing the source code of the document. Because YouTube also provides an algorithm to deobfuscate it, which humans can't run in their heads, but tools, browsers can.
For example: Making a local temporary copy in a cache or on a hard disc counted (obviously) as making a copy under the U.K.'s 1988 Copyright, Designs, and Patents Act, which had no exception for computer caches and temporary copies, and which pre-dated the invention of the WWW (albeit not of UUCP). Doing so thus infringed upon copyright.
* https://legislation.gov.uk/ukpga/1988/48/contents/enacted
The European Union recognized this defect in the law and came up with Directive 2001/29/EC, which explicitly carved out in article 5 an exception to copyright for "temporary acts of reproduction".
* https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CEL...
The U.K. implemented this Directive (Directives having to be implemented by legislation in member states of the E.U.) via a statutory instrument, the 2003 Copyright and Related Rights Regulations, which amended the 1988 Act to carve out this exception in U.K. law.
* https://legislation.gov.uk/uksi/2003/2498/note
* https://legislation.gov.uk/ukpga/1988/48/section/28A
Browsing the WWW with caching proxies and caching WWW browsers was technically a violation of copyright in U.K. law for about 11 years. And the U.K. wasn't alone in this. Several other E.U. member states also had to tweak their copyright legislation because it didn't carve out this exception for cached WWW browsing.
But the RIAA's objection to youtube-dl is not the making of temporary copies for legitimate browsing and viewing purposes. It is the circumvention of YouTube's mechanisms in order to make permanent copies that aren't being used as an integral part of WWW browsing. The RIAA is not challenging the making of temporary copies. It is challenging the circumvention of access control mechanisms.
It is asserting that youtube-dl circumvents the "YouTube rolling cipher" mechanism, whatever that is (the referenced explanation being in German and apparently gibberish), and so is a tool for circumventing technological access control measures. So whether you can legally use WWW browsers is not the point at issue. It is whether youtube-dl is a tool that enables access to YouTube contents by circumventing a "cipher".
* https://openjur.de/u/2194436.html
Ironically, this same consideration applies to tools like
* Real Player Downloader (https://www.real.com/uk/realplayer );
* Media Human's YouTubeDownloader (https://mediahuman.com/howto/download-vevo-video.html );
* Ace Thinker's Video Keeper Lite (https://acethinker.com/video-keeper-lite );
and many others. Interestingly, furthermore, the RIAA appears to assert that the "rolling cipher" applies to all YouTube content, however copyright licensed.
But by that logic if youtube-dl circumvents a "cipher", so does Chrome and all the WWW browsers. There is no legal difference between them, YouTube provides code to circumvent a "cipher" for such software itself.
- Streamlink
- Clive, clive.
YouTube provides a javascript to decrypt it and youtube-dl just runs it. Unless they are arguing that using a JS interpreter that's not approved by them is circumventing the cipher then no, it's not. And if they are, it's completely insane.
By that logic, wouldn't a browser be circumventing the cipher as well?
A substantial portion of his analysis relied on the readme misinformation. It could be taken as marketing material, and there are specific provisions for when the piracy capabilities are used as marketing.
However that's not, as far as I know or can tell, actually what happened in this case. I was very interested in hearing how tests would be viewed legally, but he seems to have been working with the wrong information and so never addressed this.
A countersuit... for what? If this is pursued in civil court, they'll be up against an army of lawyers and any judgement would be minimal (I doubt youtube-dl maintainers can claim millions in damages). You'll set a precedent, although its usefulness in future cases is questionable due to the reasons listed. The only hope is for this to be pursued in criminal court, resulting in heavy fines and/or the lawyers being disbarred. However, I doubt this will happen given how cozy the RIAA is with the establishment.
Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
https://github.com/github/dmca/pull/8124#issuecomment-715625...
Dressing up a secondary-infringement-if-that plus third-party-maybe-anticirc claims in §512 dress has at the least a bad smell about it.
(Author.)
https://docs.github.com/en/free-pro-team@latest/github/site-...
Also, the RIAA is not an unaffiliated party. They act as the collective legal representative on behalf of their members (i.e., the recording studios).
The alternative is that youtube-dl (and others) could face multiple lawsuits, one from each music company, instead of just one, and each company could test a different legal argument. The music labels can afford this. In fact, in many situations they would prefer it.
It is not even clear to me the RIAA has standing to sue under §1203: "Any person injured by a violation of section 1201 or 1202 may bring a civil action in an appropriate United States district court for such violation." RIAA are not injured due to utilisation of a non-member's mechanism.
The claim does not pass the 17 USC 1201 (a)(2)(B) test: that the technology "has only limited commercially significant purpose or use other than to circumvent a technological measure that effectively controls access to a work protected under this title".
Yes, Github (or its owner, Microsoft Corp.) may have liability under 17 USC 1201 (a)(2), "offer to the public, provide, or otherwise traffic" the code, subject to the same test above. However there is no safe-harbour provision for such violations.
Microsoft is listed on the RIAA's members page. Neither Google LLC, its Youtube subsidiary, nor parent Alphabet Inc. are. The RIAA are threatening a member for a §1201 violation against a nonmember. That's ... weird.
From TFA.
His first paragraph is wrong. It's irrelevant who imposes the copyright protection scheme, only that one exists. And speaking as someone who has entered into an RIAA licensing agreement in the past, our license agreement with the RIAA did require us to put into place measures to prevent copying of licensed RIAA content, and I assume that Gootube has the same terms in their license.
The next conclusion is also wrong, since the RIAA is the authorized legal representative for its members, and prior cases have already established that they can act in this capacity.
His conclusion on the (a)(2)(B) test is not correct either. The sole purpose of youtube-dl is to download content from websites which do not make their content available for download through standard means of access. In fact, the whole point of using youtube-dl is that they constantly update the code to get around the changes that websites make so that content can't be downloaded. I would bet a lot of money that this will be the deciding factor if this goes to trial.
Microsoft is listed on the RIAA's members page. Neither Google LLC, its Youtube subsidiary, nor parent Alphabet Inc. are. The RIAA are threatening a member for a §1201 violation against a nonmember. That's ... weird.
I'm not sure why techies keep bringing this up like it means something. It's irrelevant that they are a member of the RIAA. Microsoft is receiving the takedown request because they are/were hosting the youtube-dl code through their subsidiary Github and legal procedure requires the notice to be sent to them.
MS is not the subject of a DMCA infringement lawsuit. Repeat: Microsoft is not the subject of a DMCA infringement lawsuit. By taking down the youtube-dl repository, MS's involvement in this matter ended.
Youtube-DL would be the target of the DMCA infringement lawsuit by the RIAA. If they keep working on youtube-dl from this point on, it's very likely the RIAA will file a lawsuit against the maintainers/programmers.
Youtube-dl accesses the content from the cache directory after the browser has cached the content.
You can file a declaratory judgement claim, and a precedent there would be useful. You just wouldn't get any damages.
And, on top of the circumvention, this article tries to argue against infringement that the RIAA allegations, beyond circumvention, only involve “incidental copying", but any copying not either licensed or protected as fair use (which even the article here does not claim applies) is infringement. So, the article makes the infringement case while attempting to deny it. The infringement may only be contributory rather than direct on the part of youtube-dl’s creators, as well as anyone knowingly distributing it, but contributory infringement is still infringement, and so governed by the infringement safe harbor directly.
Computers aren't radio or CDs, there's no way to actually consume media on them without copies being made at some point.
Additionally, its not obvious who is infringing. Unlike say, downloading a torrent, people have legal access to youtube ordinarily, and pay for it. If you pay for offline access to music, why can't you use youtube-dl? Any infringement will only begin when your license to the content ends.
Additionally, the software just makes HTTP(s) requests and can work with any site. I actually have never used it to download anything on youtube.
What caf said. There are analog radios, but there are no analog CDs; there is no way to consume anything on a CD without making a copy of it.
Linux: ioctl CDROMPLAYMSF
https://www.kernel.org/doc/html/latest/userspace-api/ioctl/c...
OpenBSD has cdio(1), IDK about the API.
After running these IDE commands, the CD contents would be streamed thru the analog output.
It's not like a record or a cassete tape or a laserdisc (I think), where you can build a system with amplifiers only and no copies or sampling.
Not sure what you mean by this, as the article does claim the use in the test suite is fair use.
> At best, youtube-dl’s test suite may be infringing works when run [...]. Even that argument is specious: Given output is discarded, no permanent copy is retained, and the action is for research and development, and numerous Fair Use affirmative defence claims exist under §107, notably (1) and (4), test suite execution falls outside exclusive rights.
Am I misunderstanding?
An assertion of non-infringement, whether based on fair use or anything else, is obviously a basis for a counter-notice, and also an argument to make if the RIAA actually sues the content provider after the takedown (without or without counter-notice based restoration) to the service provider.
That a really good point. This request seems ill-considered
Especially since the RIAA isn't suing a member on behalf of a non-member.
It's simply sending a takedown notice to a member who happens to be hosting something on a subsidiary's website.
Though experience shows judicial temperment may take note of such quirks.
You seem stongly inclined to object to any element no matter how tenuously germane. It's a bad look.
Advocates for open source software and cryptography and right-to-repair and non-draconian copyright/patent protections need to do the things that their opponents do: they need to pony up the cash to do some real lobbying. Otherwise they get stuck in the same perpetual trap of trying to defend their status, one individual situation at a time, against the overapplication of laws that were poorly conceived to begin with. Sad, but the only language that congress talks is money.
The list of firms one might presume to have strong-copyright interests opposing SOPA, or more notably, shifting stance, comes to mind.
https://en.wikipedia.org/wiki/List_of_organizations_with_off...
And yes, I'm strongly encouraging such thinking.
This is really going to shock you: The Constitution explicitly grants creators and inventors "exclusive rights." (Article I, Section 8, Clause 8 ) Fair use is a statutory construct of Congress.
Again, Not only is Fair Use presumed, but it provides the basis under which such rights should be granted.
More discussion at Cornell's LII:
Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts. On the other hand, the courts have evolved a set of criteria which, though in no case definitive or determinative, provide some gauge for balancing the equities. These criteria have been stated in various ways, but essentially they can all be reduced to the four standards which have been adopted in section 107...
At the time the Constitution was written, society profited when people sold their inventions or creative works. And the purpose of patent law was to reward people for inventing or creating by allowing them to recoup the costs of inventing and creating.
There was no fair use exception back then; courts were extremely harsh on copyright and patent law offenders. It wasn't until Congress codified "fair use" into the law in the 1970s. https://msu.edu/~mcgrat71/Writing/Fair_Use_Rife.pdf
-- Lenz v. Universal Music Corp. (2015), Ninth Circuit.
https://scholar.google.com/scholar_case?case=125676491686801...
End of the day, Github is a US-based business, and they are subject to US laws, and thus all of their customers/users are affected by those laws, whether or not they're in the USA.
- Where the servers are located. - Where the comparably offices are located, - where the business is registered, - where the employees live or travel to/from - employees in any country who are quite happy to ship people to the US even when that employee has not broken any law.
From TFA.
I supect this was included by the author in anticipation of such questions.
(i) [to] circumvent the technological protection measures used by authorized streaming services such as YouTube
(ii) reproduce and distribute music videos and sound recordings owned by our member companies without authorization for such use.
Third; We also note that the source code prominently includes as sample uses of the source code the downloading of copies of our members’ copyrighted sound recordings and music videos
https://web.archive.org/web/20201025095539/https://github.co...
#1 Falls under §1201, for a maybe-anticirc tool created by a third party for whom RIAA's standing is likely nil. The anticirc use & claim itself is weak.
#2 is ... at best vague, but seems to aver contributory infringement, which ... is not related to any Chapter 1 rights or Chapter 5 penalties that I see. Users of a tool might be liable, but not its developers or manufacturers. Otherwise, a very weak §1201 claim.
#3 Fails to identify an infringement in the work but instead in its use. The infringing party given Github's CI/CD process would actually be RIAA member Microsoft. Use of works is de minimis and passes at least three of the §107 Fair Use affirmative defence tests, as well as §117 (computer program), §512(a) and/or §512(b) (Transitory Digital Network Communications).
As to YouTube works' copyright status, under Berne (US copyright since 1976), copyright exists "in original works of authorship fixed in any tangible medium of expression", with very limited exceptions, automatically, with no action required of the author. US Government works and expired copyrights are the principle exceptions. Some authorities dispute that works can be put in the public domain otherwise (I'm not convinced). While some YouTube content is in the public domain, the overwhelming majority is subject to copyright.
This is wrong, because they didn't make a 512 claim. If you read the letter, the only part that's asserted under penalty of perjury is that they're authorized to act in behalf of their member companies, which is true.
> RIAA are not injured due to utilisation of a non-member's mechanism.
They're injured when the tool is used for copyright infringement. No issue with standing here.
>Any potential copyright infringement which might occur through use of youtube-dl is at the volition of users, not the software's authors, actions would properly be directed at such users for individual acts of infringement
This ignores the fact that circumvention itself creates liability in the right circumstances.
This could be argued as intentional, deceptive, and hence fraudulent.
Fraud requires a false statement, generally. The letter clearly cites 1201 and never cites 512, and is missing essential elements of 512, (e.g. it never claims direct infringement). There's no way 512(f) applies.
https://legal-dictionary.thefreedictionary.com/Fraud
See also 18 USC 1001.
And 1001 applies to lying to the government, which isn't relevant here.
I may be wrong on some or all of this.
I proofed the damned text 20 times before submitting. That's at least two errors that snuck in....
>> Web multimedia-content Swiss army knife youtube-dl
Come on, you've already shown your bias and I need to be on guard from that point on. I love youtube-dl and built an app that used it heavily for exactly what it says in the name: downloading media from YouTube. To pretend that's not it's primary and major purpose is incredibly disingenuous.
I'm fairly confident some people use youtube-dl more on pornhub URLs than youtube URLs, what you say speaks more to youtube-dl's origins than its current state.
I use it a more often on vimeo content embedded in webpages which usually won't play in my browser (presumably due to some privacy settings) than I use it on youtube.
I do rarely use it for youtube, but given it supports so many websites, I think 'swiss army knife' is a pretty fair description.
Not having to find a clean and working version of "<somesite> downloader" and install/learn it, and instead being able to rely on one piece of software is incredibly valuable.
One of the most recent things I downloaded is a Reddit video. Reddit makes the link annoying to find, but youtube-dl handles it.
Part of the assignments were to produce content for a publicly viewable medium, and it was the easiest way to to get a certain consistency between submissions when I wanted my students to be focused on content, not files.
I also needed to have my own copy so that I had a provable record of the students work even if they decided to later take their assignments down.
In mpsyt I can curate search and lists for playback (painful or impossible with the Youtube Web client), mpv can take files with lists of URLs to play. Both use youtube-dl for media access
Very often audio-only for headless/background playback.
Also for offline playback when not on WiFi or hardline LAN link.
There's also considerable processing and metadata tools available, including grabbing transcripts from YouTube videos.
The Swiss Army knife metaphor is quite apt.