The legal dispute between the US record industry and stream-ripping site Yout was back in court last week, with the opinions and intentions of YouTube in the spotlight, even though YouTube is not involved in the litigation. However, YouTube's input is crucial, Yout's lawyer argued. And appeals court judge Richard Sullivan seemed to agree, stating at one point that, "right now YouTube’s staying out of it and we’re kind of guessing".
The case centres on whether or not YouTube has technical protection measures in place to stop people grabbing permanent downloads of content that is streaming on the platform. That's because the Recording Industry Association Of America claims that Yout circumvents those measures by facilitating stream-ripping and, in doing so, is in breach of the US Digital Millennium Copyright Act, which prohibits such circumvention.
You can actually download content from YouTube through a web browser if you know what you are doing, but the process is cumbersome. The fact it is cumbersome is deliberate, the RIAA argues, and therefore that constitutes a technical protection measure. In a lower court the judge agreed with the RIAA on that point. But, according to Yout, he was wrong to reach that conclusion without more rigorous analysis.
According to Torrentfreak, Yout's lawyer Evan Fray Witzer said at last week's hearing that- without YouTube being in court to answer questions or even submitting an amicus brief as part of the case - it's impossible to know its intentions regarding technical protection measures.
“There is a question as to what YouTube intended with these measures", he told the court. "We don’t know because YouTube isn’t here. YouTube has not come in as an amicus. And we have not had the opportunity to question YouTube about that".
Another judge hearing the case, Pierre Leval, noted that YouTube itself has a vested interest in people not downloading content, as it wants people to consume videos on its platform where it can display advertising. Therefore it had a good reason to put in place measures to stop downloads, beyond any additional content protection commitments it may have made to the record companies in its music licences.
But Witzer responded, "one would expect if that was YouTube’s concern, that you would have an amicus brief from YouTube here, and you don’t. And I think that that is significant and telling".
Elsewhere Sullivan questioned the RIAA's legal rep about the fact that downloads from YouTube are possible through a web browser if you know what you are doing. The record label trade group's lawyer again stressed that the manual download process is complicated. But Sullivan questioned whether the lower court judge was right to accept that those complications constitute a technical protection measure without more consideration and expert testimony.
The lower court judge, he said, "sort of inferred that this, because it’s complicated, because there’s no download button, because it’s a contractual provision, there must be a technological measure. He’s sort of backwardly engineered it".
It was actually Yout that sued the RIAA after it sought to have the stream-ripping site delisted from Google. The trade group got the lawsuit dismissed at first instance, but Yout appealed, arguing that the case raises "novel questions" and therefore there was a “clear need for discovery and expert testimony”.