The US record industry has scored a win in its ongoing battle against stream-ripping – and, in particular, against the most bullish stream-ripping platform of the moment, good old Yout. A judge has concluded that Yout has failed to prove that it doesn’t circumvent ‘technical protection measures’ put in place by YouTube to stop streams from being ripped. And, as a result, its service violates the US Digital Millennium Copyright Act.
Stream-ripping services – via which people can grab permanent downloads of temporary streams – have been a top piracy gripe of the music industry for some time now. As a result, various stream-ripping platforms have been on the receiving end of lawsuits, or at least the threat of legal action, from music companies.
However, in this case it was Yout that sued the Recording Industry Association Of America. The stream-ripper went legal after the record industry trade group sought to have the Yout service de-listed from the Google search engine.
The RIAA made that request of Google on the basis that Yout contravenes the aforementioned DMCA by circumventing “YouTube’s rolling cipher, a technical protection measure, that protects [the labels’] works on YouTube from unauthorised copying [and] downloading”.
Yout’s litigation resulted in lots of back and forth between it and the record industry, with various technicalities and complexities explored, and some amended complaints being submitted along the way by the stream-ripper.
In the end, it became clear that the key dispute was whether or not the various things YouTube does to stop people from downloading copies of any videos that are streaming on its platform actually constitute a technical protection measure.
Because if they don’t, then there is no technical protection measure for Yout’s technology to circumvent, and that key provision of the DMCA would be irrelevant.
Yout argued that it was actually quite easy for anyone to download a copy of a video streaming on YouTube via their web browser. In fact, it even provided the court with a step-by-step guide as to how any user could go about achieving just that. All the Yout technology does, it added, is automate that process.
The fact that anyone can actually download YouTube videos if only they have the know-how – Yout went on – means YouTube is not employing any rigorous technologies to encrypt or scramble its content, which means there are no technical protection measures in place.
But, needless to say, the RIAA did not concur. Yes, if people follow Yout’s step-by-step guide they can download YouTube content, but very few people know about that tedious and time-consuming process, and even if they did, most people probably couldn’t be bothered to go through with it. Hence a service like Yout has a reason for existing, replacing a tedious and time-consuming process with something much simpler and quicker.
And, crucially, the fact that the manual process of downloading content from YouTube is tedious and time-consuming – and the fact that YouTube has both made it and left it that way – in itself constitutes a technical protection measure as defined by the DMCA. On that latter point, judge Stefan R Underhill agrees.
“To obtain a declaratory judgment that Yout does not violate the anti-circumvention provision of the DMCA, Yout must plausibly plead that the copyrighted works are not protected by a ‘technological measure’ that ‘effectively controls access’ to the works or that Yout does not circumvent an effective technological measure to access the works”, the judge writes in his new ruling. And, he adds, they have not done that.
In fact, the judge says, he has addressed each specific issue “seriatim”, as all good judges should, and he concludes that: “Yout has not plausibly pled that YouTube lacks a technological measure; …that the YouTube technological measure is not effective; …that Yout has not circumvented the YouTube technological measure; …and that Yout has not violated [the anti-circumvention provision] of the DMCA”.
Underhill concedes that the DMCA does talk about specific technical protection measures like “scrambling and encryption”, which are not being employed by YouTube. However, he says, Congress did not intend that to be “an exhaustive list of technological measures – rather, Congress used broad enough language to ensure that the DMCA would accommodate new and evolving technologies”.
He then notes the RIAA’s arguments as to why the various things YouTube does to stop content being downloaded should qualify as technical protection measures. The trade group had stressed that “there is no download button or other feature that allows users to copy the underlying digital files” so that they can be accessed outside the YouTube ecosystem.
Meanwhile, the RIAA said, “Yout’s ‘convoluted’ step-by-step instructions rebut its claim of ‘freely given’ access and suggest that, in the ‘ordinary course’, an ‘ordinary’ YouTube user does not engage in the enumerated procedure”.
And just because a user can sneakily grab a download via their web-browser if they employ Yout’s step-by-step guide, that doesn’t mean they should, nor that YouTube’s anti-downloading efforts cannot be deemed a technical protection measure. And on that point too, the judge is in agreement.
“Even if the YouTube technological measure can be circumvented”, Underhill writes, “it may still be effective. There is a legal consensus that the fact that a person may deactivate or go around a technical protection measure does not mean that the technology fails to offer ‘effective control’, because so holding would render the DMCA ‘nonsensical'”.
So, with all that in mind, YouTube does employ technical protection measures to stop content being downloaded and Yout is circumventing them. Which means it does violate the DMCA and therefore has no legal claim against the RIAA in this case.
The record industry trade group welcomed the ruling, with its Chief Legal Officer Ken Doroshow telling reporters: “We are gratified by the court’s decision, which confirms that stream-ripping of music videos is a plain violation of the Copyright Act’s prohibition on circumvention of technological measures, like YouTube’s, that control access to copyrighted works”.
For its part, Yout said it expected this ruling at this stage, and now plans to take its arguments to the appeal courts. A spokesperson added: “We believe the district court’s ruling erroneous and flawed on a number of grounds, and we look forward to arguing our position on appeal”.