Photo Credit: David Veksler
Back in 2022, Hartford-based stream-ripper Yout appealed the dismissal of its lawsuit against the Recording Industry Association of America (RIAA). Now, this next component of the high-stakes battle is in full swing.
The latest twist in the years-running courtroom confrontation came to light in a newly released oral argument that occurred before the U.S. Court of Appeals for the Second Circuit. For a bit of quick background, stream-ripping services enable users to download videos’ audio – allegedly including protected music on YouTube and elsewhere, according to the RIAA.
Before AI’s rapid ascent kicked off in earnest, bringing with it all manner of different copyright considerations, 2021 saw the organization lean into an effort to take down stream-rippers. Included in the latter category was Russia’s FLVTO.biz, which itself engaged in a well-documented RIAA confrontation before shutting down in the U.S.
And as part of the same effort to decommission stream-rippers, the RIAA targeted Yout with a trio of DMCA takedown notices forwarded to Google, which reportedly booted the appropriate links from search-results pages. In brief, these notices accused Yout of bypassing the video-sharing platform’s “rolling cipher” anti-piracy technology en route to extracting audio.
Of course, Yout pushed back against that accusation, maintaining, among other things, that it was designed not to circumvent any technological measure(s), but to automate a process users could alternatively execute on their own via web browsers.
Amid much debate as to the definition of “circumvention,” “technological measures,” and more, the service accused the RIAA of violating the DMCA by sending false takedown notices, alleging also reputational and financial harm stemming from the episode.
Lastly, in terms of the almost half-decade saga’s synopsis, the case was dismissed in 2021 and then with prejudice in 2022; we covered the presiding judge’s ruling in detail. Yout promptly appealed, the RIAA pursued a sizable legal-fee payment, and the stream-ripper, needless to say, plowed ahead with said appeal.
Back to the aforementioned oral argument, which spanned over an hour and visited many multifaceted topics, Yout attorney Evan Fray-Witzer emphasized the perceived shortcomings of the previously noted district court dismissal (“a proper analysis of the legal issues in this case require[s] that this court have a fully developed factual record before it”).
Furthermore, when addressing YouTube’s access- and copy-control measures, the attorney touched upon the lack of information provided directly by the service in connection with the case.
“There is a question as to what YouTube intended with these measures. We don’t know, because YouTube isn’t here. YouTube has not come in as an amicus. And YouTube – we have not had the opportunity to question YouTube about that,” indicated Fray-Witzer, proceeding to spell out later that “we would need to ask YouTube” about the intent behind the relevant measures.
On the other side of the dispute, RIAA attorney Rose Ehler refuted Yout’s arguments, dove into a technical examination of the platform’s functions, and, perhaps most notably, expressed the belief that the seemingly straightforward process associated with downloading YouTube videos’ audio via web browsers constitutes hacking.
(This point is especially significant with regard to the question of whether Yout actually bypasses a technological measure in the first place.)
“There are instructions for how one could do it [download videos or audio] without Yout,” Ehler said. “But what Yout does is enable it on an automated basis.”
“No, I get that, but I mean, it seems to me, what is the technological measure that would be protecting this copyrightable material if I can do it myself?” Judge Richard Sullivan asked.
“Well, just because you can do it yourself, or you can hack the technological measure, doesn’t mean –”
“No, no, I’m not hacking anything, right?” the judge asked. “I mean, I’m just going to – I could do this right now in this courtroom on my computer, probably, right?”
“Your Honor could; I think it would be hacking,” responded Ehler.
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