MANHATTAN (CN) — Comparing its YouTube video downloading software to a “modern-day VCR that allows you to record things,” Yout LLC asked a federal appeals panel on Monday for another chance to make the case that its software does not violate the Digital Millennium Copyright Act.
Yout is a browser-based software that enables users to record high-definition personal copies of videos streamed from sites like YouTube for free and store the “ripped” files locally on their hard drives.
Although such downloading of audio and video data is barred by YouTube’s terms of service, an abundance of open-source, free stream-ripping sites are available online.
Yout’s underlying business disparagement and defamation per se lawsuit arose after the Recording Industry Association of America issued takedown notices to Google, citing unauthorized copying and downloading, and succeeded in getting the company to remove links to Yout software from its search results.
“By doing so, the user can thereby listen or view the locally stored content when not connected to the Internet and without the necessity of visiting the website on which the original content resides. In essence, Yout allows a user to time shift content,” the Hartford-based company wrote it its federal complaint.
Yout claimed its software “simply allows its users to record publicly available media content already on the Internet for their own personal, time-shifted viewing and listening." It asked for a declaratory judgment that its software is not a circumvention tool and does not violate the Digital Millennium Copyright Act’s anti-circumvention provisions.
A federal judge in Connecticut threw out Yout's complaint in September 2022, concluding that the service failed to show it did not circumvent YouTube's technological protection measures.
On appeal to the Second Circuit, Yout’s lawyer Evan Fray-Witzer told the panel on Monday that the case “calls out for expert witnesses” and should be revived at the lower court where YouTube representatives would answer questions on the record.
Yout argues that the works at issue were made freely available to any person in the world with a connection to the internet and a web browser, and there are no technological measures that effectively prevent accessing or copying the works — with or without the use of Yout’s stream-ripping technology.
“In the present case, there is no question but that the works at issue are freely available. Anyone with a computer and a web browser can go to youtube.com and access the works,” the Boston-based Fray-Witzer wrote in a brief.
“Indeed, it is clear from YouTube’s Terms of Service — which the District Court took judicial notice of — that, by providing their videos to YouTube — the defendants explicitly agreed that YouTube’s visitors were permitted access to the work.”
The Recording Industry Association of America meanwhile claims Yout’s stream-ripping software undermines YouTube's “ad-supported, on-demand streaming” business model, in which YouTube pays music companies licensing for original content and generates revenue from advertising before and during videos.
As RIAA attorney Rose Ehler argued in a brief, users who stash digital music on personal devices have no need need to subscribe to YouTube's streaming services nor to visit the "ad-supported and revenue generating YouTube platform."
“Thus, when a user uses Yout to create an unauthorized download of a music recording, the user has no need to stream the video on YouTube, depriving copyright owners of the advertising revenue,” Ehler wrote.
Ehler represented the RIAA at oral arguments on Monday. The association asked the appeals court to affirm the lower court dismissal of Yout’s common law defamation claim accusing RIAA of misrepresentation by alleging that Yout infringed unidentified RIAA members’ copyrights.
The RIAA says the federal court plausibly held that Yout’s software illegally circumvents “a technological measure that effectively controls access” the copyrighted material on YouTube.
The appeals panel was composed of U.S. Circuit Judges Richard Sullivan, a Trump-appointee; U.S. Circuit Judge Susan Carney, an Obama appointee; and U.S. Circuit Judge Pierre N. Level, Clinton appointee.
All three judges made references to their basic understanding of Yout’s media-ripping software. Judge Sullivan posited that he would be able to use it to copy a video in the courtroom during the hearing with his laptop.
The San Francisco nonprofit digital privacy rights group the Electronic Frontier Foundation and the software development website GitHub each submitted amicus briefs in support of Yout’s appeal.
“By interpreting the DMCA in a way that conflates measures controlling access to a work with measures controlling use of a work that is already publicly accessible, the district court’s ruling threatens to imperil the software developers who create those tools, ensnaring legitimate software within the DMCA’s reach and chilling technological innovation,” an attorney for GitHub wrote (emphasis in original).
U.S. Circuit Judge Sullivan couldn’t help himself from making a reference to a classic scene from 1992 courtroom comedy “My Cousin Vinny,” kicking off the oral arguments by first asking Yout’s lawyer, “What is a yute?”
The three-judge panel did not rule from the bench on Monday morning.
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