IP Law Daily, COPYRIGHT—D. Conn.: Service that allows users to easily download YouTube videos violates DMCA, (Oct 3, 2022)

By Thomas Long, J.D.

Although YouTube files are downloadable, the ordinary method to do so is relatively complicated, meaning that “technological measures” to control access were in place, and the service’s easy downloading process amounted to “circumvention.”

Software that allowed users to download audio and video files from Internet streaming websites, such as YouTube, violated Section 1201 of the Digital Millennium Copyright Act (DMCA), the federal district court in Bridgeport, Connecticut, has decided. The court dismissed a declaratory judgment claim brought by the software’s provider, Yout, LLC, against the Recording Industry Association of America, Inc. and unnamed record companies because the facts as pleaded by Yout established that the software circumvents an effective technological measure in violation of Section 1201 as a matter of law. Although YouTube did not encrypt content and means existed for users to download files after jumping through various technical hoops, YouTube’s inherent limitations on user downloaded constituted a technological measure to control access to copyrighted works, the court concluded. The court also dismissed Yout’s misrepresentation claim under DMCA Section 512(f) because the DMCA does not penalize a misrepresentation of circumvention (Yout, LLC v. Recording Industry Association of America, Inc., September 30, 2022, Underhill, S).

Yout’s service. Yout’s online service enabled users to create a personal copy of Internet media content—such as an MP3 audio file or an MP4 video file—on their computers by entering a URL linked to the content. Yout characterized its service as letting users “time shift” the content. The content is not saved or kept on Yout’s servers or platform at any time. The court noted that by making this characterization, Yout seemed to be trying to analogize the case to the one presented in Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 446 (1984), in which the Supreme Court held that time shifting—making a personal copy of a television program to watch at a later time—did not constitute copyright infringement. “But this case concerns alleged violations of the DMCA rather than copyright infringement, so the analogy-by-implication to anti-infringement law is inapposite,” the court said.

Yout’s interaction with YouTube. Although YouTube content is not encrypted, and means exist to download the files, such as by undertaking a number of steps using the Chrome browser’s Developer Tools. However, with Yout, users can download files directly from YouTube in a “cleaner and easier format” and “fewer steps” by “automat[ing]” the process. A Yout User simply enters a link (URL) to a YouTube video; Yout reads and interprets a JavaScript program sent by YouTube, deriving a signature value, which it then sends back to YouTube to initiate the video stream. “The mechanism used by Yout’s platform does not require any password, key, or other secret knowledge to access a YouTube video,” the court explained. “Rather, YouTube provides the means of accessing its videos to anyone who requests them.”

RIAA notices; Yout’s complaint. On October 25, 2019, the Recording Industry Association of America (RIAA), on behalf of 10 record companies, sent a notice to Google with the intent to cause Google to delist Yout’s software platform from searches. According to the RIAA, Yout’s software “circumvents YouTube’s rolling cipher, a technical protection measure, that protects our members’ works on YouTube from unauthorized copying/downloading.” Google delisted Yout and rendered it undiscoverable via search. This allegedly caused some Yout users to cancel their subscriptions. In addition, Yout’s PayPal account was shut down due to the RIAA’s notices. Yout then filed suit against the RIAA and the “Doe” record companies, seeking a declaration that its service and software did not violate Section 1201 of the DMCA—the provision that prohibits using or providing means to circumvent technological controls to access of copyrighted material—and requesting damages under Section 512(f) for alleged misrepresentations about its conduct. Yout also asserted claims for defamation and business disparagement. The RIAA moved to dismiss the complaint.

Declaratory judgment claim—“technological measure.” The court granted the RIAA’s motion to dismiss the declaratory judgment claim, which also made the defamation and disparagement claims meritless. To adequately plead its declaratory judgment claim regarding the lack of a Section 1201 violation, Yout had to plausibly assert that the copyrighted works displayed by YouTube 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 court first concluded that Yout’s allegations suggested that YouTube has a “technological measure” that controls access to copyrighted works, within the meaning of Section 1201(a). According to the court, a technological measure, within the meaning of Section 1201(a), is a technology that “controls access” to a work protected by copyright. Technological measures were not limited to scrambling and encryption techniques but included less “restrictive” measures, such as those employed by YouTube, the court said, reasoning that “the plain meaning of the phrase ‘controls access’ may include technical protective measures that restrain a YouTube user’s freedom or ability to access the location where downloadable files are stored and download them.” Moreover, Section 1201(a) did not require that the copyright owner itself put a technological measure in place.

Yout failed to plausibly allege that YouTube lacks a technological measure, said the court, because the complaint appeared to assert that YouTube’s technology restrained a user’s freedom or ability to access and download video and audio files. YouTube did not provide any means on its website for users to readily download files, and its terms of service said that the platform contains “features that … limit the use of the Service or Content” to streaming. In addition, it appeared that downloading files containing both their video and audio components was difficult or perhaps impossible via ordinary means, whereas it was easy using Yout’s service.

“Because the legal standard does not require airtight protection, I agree with the RIAA that Yout does not plausibly plead that YouTube lacks an effective [technological protection measure].” In siding with the RIAA, the court cited Section 1201(a)(3)(B)’s language stating that a technological measure effectively controls access to a copyrighted work “if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.” The allegations in Yout’s complaint—rather than plausibly asserting that YouTube lacked effective control measures—indicated as a matter of law that YouTube’s measures were effective in “restricting” downloads and “directing” users to only stream content.

Moreover, the language of the complaint indicated that Yout’s software circumvented the control measures. “Yout’s allegations suggest that it ‘bypasses’ the YouTube player page and its measures that direct a user to stream content, rather than access files to download,” the court said.

Misrepresentation claim. To protect against DMCA takedown notices filed in bad faith, 17 U.S.C. § 512(f) penalizes any person who knowingly misrepresents that a material or activity is infringing. Yout alleged that the RIAA knowingly misrepresented that Yout’s software circumvented YouTube’s protection measures. However, the RIAA argued—and the court agreed—that argues that Yout’s claim failed as a matter of law because Section 512(f) only penalizes knowing misrepresentation of alleged copyright infringement, not circumvention. Therefore, this claim was also dismissed.

The case is No. 3:20-cv-01602-SRU.

Attorneys: Charles Lee Mudd, Jr. (Mudd Law) for Yout LLC. David Norman-Schiff (Wiggin and Dana LLP) for Recording Industry Association of America, Inc.

Companies: Yout LLC; Recording Industry Association of America, Inc.

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