Downloading audio and video is prohibited by YouTube’s terms of service but there are numerous ‘stream-ripping’ sites available on the web that do just that.
These services are a thorn in the side of music industry outfits, who see them as a major piracy threat. The operators of these stream-ripping tools disagree and point at the variety of legal uses instead.
At the end of 2020, the operator of one of the largest stream-rippers took matters into his own hands. Instead of hiding in the shadows like some competitors, Yout.com owner Johnathan Nader sued the RIAA, asking the federal court in Connecticut to declare the service as non-infringing.
Does YouTube Have TPMs?
The case has been ongoing for nearly two years and Yout.com has filed two amended complaints that addressed earlier shortcomings and refined the legal arguments. At the heart of the dispute is the question of whether Yout’s service violates a provision in the DMCA that prohibits the circumvention of technological protection measures (TPMs).
Yout.com argues that YouTube doesn’t have meaningful technical protection measures; so there is nothing to circumvent. In just a few steps, anyone can download audio and video from the site without additional tools.
This argument was reiterated at a court hearing in late August, where the RIAA’s request to dismiss the case was on the agenda. Yout’s attorney Charles Mudd maintained that anyone can manually download video and audio from YouTube, concluding that there are no effective technological protection measures in place.
The RIAA saw things quite differently. The music group cited the DMCA, which points out that a technological measure is considered a TPM if it, “in the ordinary course of its operation”, requires a process or a treatment to access copyrighted video or audio. That’s the case with YouTube’s ‘rolling cipher’ technology.
Court Sides with the RIAA
In an order released on Friday, Judge Stefan Underhill sides with the RIAA. The Judge clearly spent a lot of time reaching this decision which is apparent from his 46-page ruling, which goes into great detail on YouTube’s protection measures.
To grant Yout a judgment that its service doesn’t violate the DMCA, it needed to show that YouTube’s videos are not protected by a “technological measure” that “effectively controls access” to copyrighted works. Or alternatively, that Yout does not circumvent an effective technological measure.
After weighing the evidence, Judge Underhill concludes that YouTube’s relatively basic ‘rolling cipher’ protection is indeed a technological measure. It doesn’t involve any DRM or encryption, as Yout argued, but that’s not required by law.
“Although the DMCA reflects Congress’s intent that scrambling and encryption are technological measures per se, scrambling and encryption do not constitute an exhaustive list of technological measures.
“[The] allegations that YouTube does not have a DRM regime nor any ‘password, key, or other secret knowledge’ do not compel the conclusion that YouTube lacks a technological measure, just that it lacks the specified technological measures,” Judge Underhill adds.
Automating Circumvention
The court doesn’t dispute that people can use a regular browser to download audio and video files from YouTube. However, that requires them to go into the browser’s developer tools and manually modify a signature value.
At the end of this manual process, people can freely access the audio and video files on YouTube. However, Yout goes a step further as it can also combine these two files again.
“Yout does not allege that YouTube freely gives videos with their audio. Indeed, Yout clarified at oral argument that Yout creates combined audio/video files using ffmpeg software, which is not alleged to be part of the steps Yout ‘automates’ in the Second Amended Complaint.”
Based on these and other arguments, Judge Underhill concludes that Yout failed to show that there “is nothing to bypass” or that YouTube lacks a “technological measure,” as defined under the DMCA.
Effective but Not Perfect
Whether this protection measure is effective is another question. Yout argued that, since people can do what it does using publicly available tools, YouTube has no effective protection in place. However, the court again disagrees.
“Importantly, even if the YouTube technological measure can be circumvented, it may still be effective. There is a legal consensus that the fact that a person may deactivate or go around a TPM does not mean that the technology fails to offer ‘effective control’ because so holding would render the DCMA ‘nonsensical,” Judge Underhill writes.
All in all the court concludes that the evidence weighs in favor of the RIAA. While YouTube’s protection is relatively easy to circumvent, Yout is designed to make this bypass process even easier.
“I agree with the RIAA that Yout’s circumvention entails bypassing YouTube’s technological measures and modifying YouTube’s ‘signature value’ to facilitate unauthorized access to a downloadable digital copy.
“Because that bypass and modification constitute a ‘process,’ I conclude that Yout does not plausibly allege that it does not circumvent the YouTube TPM, within the meaning of section 1201(a),” Judge Underhill adds.
Case Dismissed
Based on the above, Judge Underhill dismissed the case without allowing Yout to amend its complaint. This is a clear setback for the YouTube-ripper, but it doesn’t mean that all is lost.
Responding to the verdict, Yout’s attorney Charles Mudd says that it doesn’t come as a complete surprise. At the same time, he stresses that the legal battle isn’t over yet as Yout plans to take the matter to the appeal court.
“Yout expected this result from the District Court and appreciates Judge Underhill providing this early opportunity to bring the issues before the Second Circuit. 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,” Mudd notes.
The RIAA is pleased with the outcome so far, as it’s an important victory in its legal quest against streamripping services.
“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.” RIAA’s Chief Legal Officer Ken Doroshow says.
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A copy of Connecticut District Court Judge Stefan Underhill’s order on RIAA’s motion to dismiss is available here (pdf)
