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Comment by roywiggins | Hacker News Reader

Fair use is about copyright. The DMCAs anti-circumvention section means you can't distribute software designed to circumvent DRM, even if that software isn't itself infringing. So I don't see how fair use could apply.

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At a minimum, Google's counsel testified under penalty of perjury in this takedown letter that they took Fair Use into consideration, so there must be at least some application here. (And if there isn't, that sure is a strange sentence to have in the letter - almost as if they are misusing this takedown letter template after all!)

Fair Use is about using copyrighted content, which is widely shackled behind DRM. Any court can easily see that in order to exercise your right to use that content in a Fair Use sort of way, you must break the DRM. Therefore, the existence and availability of DRM-breaking tools is a necessary condition for Fair Use to be exercised at all in conjunction with the modern media landscape.

DMCA does not include fair use as an allowable reason to circumvent DRM. That is one of the reasons why DRM sometimes shows up in weird places because it effectively limits fair use rights (see also all the right to repair stuff that people have been talking sbout lately)

IANAL

>DMCA does not include fair use as an allowable reason to circumvent DRM. //

Could you cite the law you're referring to here please?

The UK CDPA as amended to follow the EU's Marrakech directive seems to say anything that prevents you from exercising your Fair Dealing rights to make content accessible for disabled people is void if it contradicts these rights. This seems necessarily to allow for circumvention of DRM (for people with disabilities and specific registered companies) but that also appears to mean production of circumvention means needs to be legal otherwise such accessibility will be impossible.

DMCA is the Digital Millennium Copyright Act, the latest amendment to USA copyright law. Text of the law is here: https://www.copyright.gov/legislation/dmca.pdf . GitHub is a division of a US company, Microsoft, so it is bound by US law.

Actually, it is more complicated than that. To exercise fair use defense (yes, it is a defense and not a right in US Copyright law), you must be able to use a process that is non-invasive (as stated in DMCA). So, if a DRM is preventing you to screenshot it, you are actually required to use a camera and exercise the analog hole. This is definitely disappointing, and I am not personally endorsing it, but the law as it stands does not lend credence. (Also, what RIAA is trying to remove is the code that allows to get the music video files from YouTube, which is served differently to normal videos (not just the test units in question). This was conspicuously absent from all discussions I've read.)

> (Also, what RIAA is trying to remove is the code that allows to get the music video files from YouTube, which is served differently to normal videos. This was conspicuously absent from all discussions I've read.)

It's absent because RIAA's intent is not stated. They did a blanket takedown, unprompted. As far as I can tell they never requested any particular modification. IIRC the only hint that it might be related is a mention that the rolling cipher algorithm that YouTube-dl "circumvents" was ruled to be DRM under German law.

However, the bulk of the DMCA seems to be leveled at the marketing of ytdl as a circumvention tool, citing unit tests containing metadata referencing RIAA-owned content (unit tests, apparently, are now part of 'marketing,' I guess.)

> However, the bulk of the DMCA seems to be leveled at the marketing of ytdl as a circumvention tool, citing unit tests containing metadata referencing RIAA-owned content (unit tests, apparently, are now part of 'marketing,' I guess.)

This is definitely untested in court but I won't be surprised if it is indeed part of marketing. The problem with the tests is that they do download the video, even if it is a small amount and since ytdl does not reject the video for downloading at all it is technically infrigment, probably without a valid fair use defense. If ytdl has actively rejected that (for example if the test units are specifically to prevent downloading those types of videos), they may have a stonger defense against RIAA claims.

Well... the tests do not actually download the videos.

Not in their entirety, but it still downloaded a second for each of those videos. Interpret that as you wish, but I will not be surprised if RIAA will use this.

Congress did not intend fair use to be an affirmative defense. It is clearly a right under US copyright law. The rights granted to copyright owners in section 106 are expressly “subject to” the fair use defense. The fair use section of the Act, section 107, provides expressly that fair use “is not an infringement of copyright", rather than an infringement with an affirmative defense. In Lenz v. Universal the courts say that fair use is "distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse.” and that “fair use is ‘authorized by the law’ and a copyright holder must consider the existence of fair use before sending a takedown notification….”

Fair use applies to copyrighted content, not circumvention tools.

This nonsense about "it's a defence not a right" discredits you.

It's a right because where it applies there is no tort. Like an allowed right of way over private property. Yes, if a you have someone abusing your rights by filling frivolous suits then "it's a defence", of course it is they're trying to assert a right they don't have.

Such needless couching of public rights in an authoritarian way is really offensive to the purposes of copyright, which is granted by the public - the demos - to private parties. It's not a natural right, and so yes, under Fair Use there is no right being infringed that a valid claim of tort can be made for; so one does have a right to do those things.

Thankfully in some countries the courts will just dismiss the case :

https://www.nytimes.com/2006/10/09/technology/09steal.html

Two years later, their case was dismissed :

https://www.generation-nt.com/drm-stopdrm-dadvsi-justice-loi... (fr)

They were considered as 'irresponsible' due to 'either psychological issues, force majeure or legitimate self-defense".

(Note that they even seem to have shared the DMCA infringing software on their website.)

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