There are a number of different tools out there that let you download YouTube videos. These tools are incredibly useful for a number of reasons and should be seen as obviously legal in the same manner that home video recording devices were declared legal by the Supreme Court, because they have substantial non-infringing uses. But, of course, we’re in the digital age, and everything that should be obviously settled law is up for grabs again, because “Internet.”

In this case, a company named Yout offered a service for downloading YouTube video and audio, and the RIAA (because, they’re the RIAA) couldn’t allow that to happen. Home taping is killing music, y’know. Rather than going directly after Yout, the RIAA sent angry letters to lots of different companies that Yout relied on to exist. It got Yout’s website delisted from Google, had its payment processor cut the company off, etc. Yout was annoyed by this and filed a lawsuit against the RIAA.

The crux of the lawsuit is “Hey, we don’t infringe on anything,” asking for declaratory judgment. But it also seeks to go after the RIAA for DMCA 512(f) (false takedown notices) abuse and defamation (for the claims it made in the takedown notices it sent). All of these were going to be a longshot, and so it probably isn’t a huge surprise that the ruling was a complete loser for Yout (first posted to TorrentFreak).

But, in reading through the ruling there are things to be concerned about, beyond just the ridiculousness of saying that a digital VCR isn’t protected in the same way that a physical one absolutely is.

In arguing for declaratory judgment of non-infringement, Yout argues that it’s not violating DMCA 1201 (the problematic anti-circumvention provisions) because YouTube doesn’t really employ any technological protection measures that Yout has to circumvent. The judge disagrees, basically saying that even though it’s easy to download videos from YouTube, it still takes steps and is not just a feature that YouTube provides.

The steps outlined constitute an extraordinary use of the YouTube platform, which is self-evident from the fact that the steps access downloadable files through a side door, the Developer Tools menu, and that users must obtain instructions hosted on non-YouTube platforms to explain how to access the file storage location and their files. As explained in the previous section, the ordinary YouTube player page provides no download button and appears to direct users to stream content. I reasonably infer, then, that an ordinary user is not accessing downloadable files in the ordinary course.

That alone is basically an attack on the nature of the open internet. There are tons of features that original websites don’t provide, but which can be easily added to any website via add-ons, extensions, or just a bit of simple programs. But, the judge here is basically saying that not providing a feature in the form of a button directly means that there’s a technological protection measure, and bypassing it could be seen as infringing.

Yikes!

Of course, part of DMCA 1201 is not just having a technological protection measure in place, but an effective one. Here, it seems like there’s an argument that it’s not a strong one. It is not at all a strong protection measure, because basically the only protection measure is “not including a download button.” But, the court sees it otherwise. Yout points out that YouTube makes basically no effort to block anyone from downloading videos, showing that it doesn’t encrypt the files, and the court responds that it doesn’t need to encrypt the files, because other technological protections exist, like passwords and validation keys. But, uh, YouTube doesn’t use either of those either. So the whole thing is weird.

As I have already explained, the definition of “circumvent a technological measure” in the DMCA indicates that scrambling and encryption are prima facie examples of technological measures, but it does not follow that scrambling and encryption constitute an exhaustive list. Courts in the Second Circuit and beyond have held that a wide range of technological measures not expressly incorporated in statute are “effective,” including password protection and validation keys.

So again, the impression we’re left with is the idea that if a website doesn’t directly expose a feature, any third party service that provides that feature may be circumventing a TPM and violating DMCA 1201? That can’t be the way the law works.

Here, the court then says (and I only wish I were kidding) that modifying a URL is bypassing a TPM. Let me repeat that: modifying a URL can be infringing circumvention under 1201. That’s… ridiculous.

Moreover, Yout’s technology clearly “bypasses” YouTube’s technological measures because it affirmatively acts to “modify[]” the Request URL (a.k.a. signature value), causing an end user to access content that is otherwise unavailable. … As explained, without modifying the signature value, there is no access to the allegedly freelyavailable downloadable files. Accordingly, I cannot agree with Yout that there is “nothing to circumvent.”

 

Then, as Professor Eric Goldman notes, the judge dismisses the 512(f) claims by saying that 512(f) doesn’t apply to DMCA 1201 claims. As you hopefully remember, 512(f) is the part of the DMCA that is supposed to punish copyright holders for sending false notices. In theory. In practice, courts have basically said that as long as the sender believes the notice is legit, it’s legit, and therefore there is basically never any punishment for sending false notices.

Saying that 512(f) only applies to 512 takedown notices, and not 1201 takedown notices is just yet another example of the inherent one-sidedness of the DMCA. For years, we’ve pointed out how ridiculous 1201 is, in which merely advertising tools that could be used to circumvent a technical protection measure is considered copyright infringement in and of itself — even if there’s no actual underlying infringement. Given how expansive 1201 is in favor of copyright holders, you’d think it only makes sense to say that bogus notices should face whatever tiny penalty might be available under 512(f), but the judge here says “nope.” As Goldman highlights, this will just encourage people to send takedowns where they don’t directly cite 512, knowing that it will protect them from 512(f) responses.

One other oddity that Goldman also highlights: most of the time if we’re thinking about 1201 circumvention, we’re talking about the copyright holder themselves getting upset that someone is routing around the technical barriers that they put up. But this case is different. YouTube created the technical barriers (I mean, it didn’t actually, but that’s what the court is saying it did), but YouTube is not a party to the lawsuit.

So… that raises a fairly disturbing question. Could the RIAA (or any copyright holder) sue someone for a 1201 violation for getting around someone else’s technical protection measures? Because… that would be weird. But parts of this decision suggest that it’s exactly what the judge envisions.

Yes, some may argue that this tool is somehow “bad” and shouldn’t be allowed. I disagree, but I understand where the argument comes from. But, even if you believe that, it seems like a ruling like this could still lead to all sorts of damage for various third party tools and services. The internet, and the World Wide Web were built to be module. It’s quite common for third party services to build tools and overlays and extensions and whatnot to add features to certain websites.

It seems crazy that this ruling seems to suggest that might violate copyright law.

Source: There Are All Sorts Of Problems With Ruling That YouTube Ripping Tool May Violate Copyright Law | Techdirt

The biggest problem is that if you don’t download the video to your device, you can’t actually watch it, so YouTube is designed to allow you to download the video.

[…]

George Washington University libraries have put out an alert to students and faculty that Wiley, one of the largest textbook publishers, has now removed 1,379 textbook titles that the library can lend out. They won’t even let the library purchase a license to lend out the ebooks. They will only let students buy the books.

Wiley will no longer offer electronic versions of these titles in the academic library market for license or purchase. To gain access to these titles, students will have to purchase access from vendors that license electronic textbooks directly to students, such as VitalSource, or purchase print copies. At most, GW Libraries can acquire physical copies for course reserve, which severely reduces the previous level of access for all students in a course.

This situation highlights how the behavior of large commercial publishers poses a serious obstacle to textbook affordability. In this case, Wiley seems to have targeted for removal those titles in a shared subscription package that received high usage. By withdrawing those electronic editions from the academic library market altogether, Wiley has effectively ensured that, when those titles are selected as course textbooks, students will bear the financial burden, and that libraries cannot adequately provide for the needs of students and faculty by providing shared electronic access. 

For years now, we’ve noted that if libraries didn’t already exist, you know that the publishers would scream loudly that they were piracy, and almost certainly block libraries from coming into existence. Of course, since we first noted that, the publishers seem to think they can and should just kill off libraries. They’ve repeatedly jacked up the prices on ebooks for libraries, making them significantly more expensive to libraries than print books, and putting ridiculous limitations on them. That is, when they even allow them to be lent out at all.

They’ve also sued the Internet Archive for daring to lend out ebooks of books that the Archive had in its possession.

And now they’re pulling stunts like this with academic libraries?

And, really, this is yet another weaponization of copyright. If it wasn’t an ebook, the libraries could just purchase copies of the physical book on the open market, and then lend it out. That’s what the first sale right enables. But the legacy copyright players made sure that the first sale right did not exist in the digital space, and now we get situations like this, where they get to dictate the terms over whether or not a library (an academic one at that) can even lend out a book.

This is disgusting behavior and people should call out Wiley for its decision here.

Source: Book Publishing Giant Pulls Nearly 1400 Ebook Titles From GW Library; Forcing Students To Buy Them Instead | Techdirt

On Friday, we wrote about hundreds of authors signing a letter calling out the big publishers’ attacks on libraries (in many, many different ways). The publishers pretend to represent the best interests of the authors, but history has shown over and over again that they do not. They represent themselves, and use the names of authors they exploit to claim the moral high ground they do not hold.

It’s no surprise, then, that the publishers absolutely fucking lost their shit after the letter came out. The Association of American Publishers put out a statement falsely claiming that the letter, put out by Fight for the Future (FftF), and signed by tons of authors from the super famous to the less well known, was actually “disinformation in the Internet Archive case.” And, look, if you’re at the point you’re blaming the Internet Archive for something another group actually did, you know you’ve lost, and you’re just lashing out.

Perhaps much more telling is that the Authors Guild actually put out an even more aggressive statement against Fight for the Future. Now, as best selling author Barry Eisler (who signed onto Fight for the Future’s letter) wrote write here on Techdirt years ago, it’s been clear for a while that the Authors Guild is not actually representing the best interests of authors. It has long been a front group for the publishers themselves.

The Authors Guild’s response to the FftF letter simply confirms this.

First, it claims that authors were misled into signing the letter by an earlier, different draft of the letter. This is simply false. The Authors Guild is making shit up because they just can’t believe that maybe authors actually support this.

They do name one author, Daniel Handler (aka Lemony Snicket), who had signed on, but removed his name before the letter was even published. But… I’m guessing the real reason that probably happened was that the publishers (who learned about the letter before it was published as proved by this email that was sent around prior to the release) FLIPPED OUT when they saw Handler’s name was on the letter. That’s because in their lawsuit against the Internet Archive’s open library project, they rely heavily on the claim that Lemony Snicket’s books are available there.

It seems reasonable to speculate that the publishers saw his name was on the letter, realized it undermined basically the crux of their case, and came down like a ton of bricks on him to pressure him into un-signing the letter. That story, at the very least, makes more sense than someone like Handler somehow being “tricked” into signing a letter that very clearly says what it says.

The Authors Guild’s other claims are equally sketchy.

The lawsuit against Open Library is completely unrelated to the traditional rights of libraries to own and preserve books. It is about Open Library’s attempt to stretch fair use to the breaking point – where any website that calls itself a library could scan books and make them publicly available – a practice engaged in by ebook pirates, not libraries.

This completely misrepresents what the Open Library does, and its direct parallel to any physical library, in that it buys a copy of a book and then can lend out that copy of the book. The courts have already established that scanning books is legal fair use — thanks to a series of cases the Authors Guild brought and lost (embarrassingly so) — and the Open Library then only allows a one-to-one lending of ebooks to actual books. It is functionally equivalent to any other library in any way.

And this is actually important, living at a time when these very same publishers are trying to use twisted interpretations of copyright law, to insist that they can limit how libraries buy and lend ebooks in ways that simply are not possible under the law with regular books.

Also, there’s this bit of nonsense:

The lawsuit is being brought only against IA’s Open Library; it will not impact in any way the Wayback Machine or any other services IA offers.

This is laughable. The lawsuit is asking for millions and millions of dollars from the Internet Archive. If it loses the case, there’s a very strong likelihood that the entire Internet Archive will need to shut down, because it will be unable to pay. Even if the Internet Archive could survive, the idea that this non-profit would be forced to fork over tens of millions of dollars wouldn’t have any impact on other parts of its offerings is laughable.

Fight for the Future has hit back at these accusations:

As expected, corporate publishing industry lobbyists have responded by attempting to undermine the demands of these authors by circulating false and condescending talking points, a frequent tactic lobbyists use to divert attention from the principled actions of activists.

The statement from the Authors Guild specifically asserts, without evidence, that “multiple authors” who signed this letter feel they were “misled”. This assertion is false and we challenge these lobbyists to either provide evidence for their claim or retract it. 

It’s repugnant for industry lobbying associations who claim to represent authors to dismiss the activism of author-signatories like Neil Gaiman, Chuck Wendig, Naomi Klein, Robert McNamee, Baratunde Thurston, Lawrence Lessig, Cory Doctorow, Annalee Newitz, and Douglas Rushkoff, or claim that these authors were somehow misled into signing a brief and clear letter issuing specific demands for the good of all libraries. Corporate publishing lobbyists are free to disagree with the views stated in our letter, but it’s unacceptable for them to make false claims about our organization or the authors who signed.

They also highlight how many authors who signed onto the letter talked about how proud they are that their books are available at the Internet Archive, which is not at all what you would expect if the Open Library was actually about “piracy.”

Author Elizabeth Kate Switaj said when signing: “My most recently published book is on the Internet Archive—and that delights me.”  Dan Gillmor said: “Big Publishing would outlaw public libraries if it could—or at least make it impossible for libraries to buy and lend books as they have traditionally done, to enormous public benefit—and its campaign against the Internet Archive is a step toward that goal.” Sasha Costanza-Cook called publisher’s actions against the Internet Archive “absolutely shameful” and Laura Gibbs said “it’s the library I use most, and I am proud to see my books there.”

They, also, rightly push back on the totally nonsense claims that FftF is “not independent” and is somehow a front for the Internet Archive. I know people at both organizations, and this assertion is laughable. The two organizations agree on many things, but are absolutely and totally independent. This is nothing but a smear from the Authors Guild which can’t even fathom that most authors don’t like the publishers or the way the Authors Guild has become an organization that doesn’t look out for the best interests of all authors, but rather just a few of the biggest names.

Source: Publishers Lose Their Shit After Authors Push Back On Their Attack On Libraries | Techdirt

A group of authors and other creative professionals are lending their names to an open letter protesting publishers’ lawsuit against the Internet Archive Library, characterizing it as one of a number of efforts to curb libraries’ lending of ebooks.

Authors including Neil Gaiman, Naomi Klein, and Cory Doctorow lent their names to the letter, which was organized by the public interest group Fight for the Future.

“Libraries are a fundamental collective good. We, the undersigned authors, are disheartened by the recent attacks against libraries being made in our name by trade associations such as the American Association of Publishers and the Publishers Association: undermining the traditional rights of libraries to own and preserve books, intimidating libraries with lawsuits, and smearing librarians,” the letter states.

A group of publishers sued the Internet Archive in 2020, claiming that its open library violates copyright by producing “mirror image copies of millions of unaltered in-copyright works for which it has no rights” and then distributes them “in their entirety for reading purposes to the public for free, including voluminous numbers of books that are commercially available.” They also contend that the archive’s scanning undercuts the market for e-books.

The Internet Archive says that its lending of the scanned books is akin to a traditional library. In its response to the publishers’ lawsuit, it warns of the ramifications of the litigation and claims that publishers “would like to force libraries and their patrons into a world in which books can only be accessed, never owned, and in which availability is subject to the rightsholders’ whim.”

The letter also calls for enshrining “the right of libraries to permanently own and preserve books, and to purchase these permanent copies on reasonable terms, regardless of format,” and condemns the characterization of library advocates as “mouthpieces” for big tech.

“We fear a future where libraries are reduced to a sort of Netflix or Spotify for books, from which publishers demand exorbitant licensing fees in perpetuity while unaccountable vendors force the spread of disinformation and hate for profit,” the letter states.

The litigation is in the summary judgment stage in U.S. District Court in New York.

Hachette Book Group, HarperCollins Publishers, John Wiley & Sons Inc and Penguin Random House are plaintiffs in the lawsuit.

[…]

Source: Authors Publish Letter Protesting Lawsuit Against Internet Library – Deadline

Last year, I tried to create a “test suite” of websites that any new internet regulation ought to be “tested” against. The idea was that regulators were so obsessively focused on the biggest of the big guys (i.e., Google, Meta) that they never bothered to realize how it might impact other decently large websites that involved totally different setups and processes. For example, it’s often quite impossible to figure out how a regulation about Google and Facebook content moderation would work on sites like Wikipedia, Github, Discord, or Reddit.

Last week, we called out that Texas’s HB 20 social media content moderation law almost certainly applies to sites like Wikipedia and Reddit, yet I couldn’t see any fathomable way in which those sites could comply, given that so much of the moderation on each is driven by users rather than the company. It’s been funny watching supporters of the law try to insist that this is somehow easy for Wikipedia (probably the most transparent larger site on the internet) to comply with by being “more transparent and open access.”

If you somehow can’t see that tweet or screenshot, it’s a Trumpist defender of the law responding to someone asking how Wikipedia can comply with the law, saying:

Wikipedia would have to offer more transparent and open access to their platform, which would allow truth to flourish over propaganda there? Is that what you’re worried about, or what is it?

To which a reasonably perplexed Wikipedia founder Jimmy Wales rightly responds:

What on earth are you talking about? It’s like you are writing from a different dimension.

Anyway… it seems some folks on Reddit are realizing the absurdity of the law and trying to demonstrate it in the most internety way possible. Michael Vario alerts us that the r/PoliticalHumor subreddit is “messing with Texas” by requiring every comment to include the phrase “Greg Abbott is a little piss baby” or be deleted in a fit of content moderation discrimination in violation of the HB20 law against social media “censorship.”

Until further notice, all comments posted to this subreddit must contain the phrase “Greg Abbott is a little piss baby”

There is a reason we’re doing this, the state of Texas has passed H.B. 20, Full text here, which is a ridiculous attempt to control social media. Just this week, an appeals court reinstated the law after a different court had declared it unconstitutional. Vox has a pretty easy to understand writeup, but the crux of the matter is, the law attempts to force social media companies to host content they do not want to host. The law also requires moderators to not censor any specific point of view, and the language is so vague that you must allow discussion about human cannibalization if you have users saying cannibalization is wrong. Obviously, there are all sorts of real world problems with it, the obvious ones being forced to host white nationalist ideology or insurrectionist ideation. At the risk of editorializing, that might be a feature, not a bug for them.

Anyway, Reddit falls into a weird category with this law. The actual employees of the company Reddit do, maybe, one percent of the moderation on the site. The rest is handled by disgusting jannies volunteer moderators, who Reddit has made quite clear over the years, aren’t agents of Reddit (mainly so they don’t lose millions of dollars every time a mod approves something vaguely related to Disney and violates their copyright). It’s unclear whether we count as users or moderators in relation to this law, and none of us live in Texas anyway. They can come after all 43 dollars in my bank account if they really want to, but Virginia has no obligation to extradite or anything.

We realized what a ripe situation this is, so we’re going to flagrantly break this law. Partially to raise awareness of the bullshit of it all, but mainly because we find it funny. Also, we like this Constitution thing. Seems like it has some good ideas.

They also include a link to the page where people can file a complaint with the Texas Attorney General, Ken Paxton, asking him to investigate whether the deletion of any comments that don’t claim that his boss, Governor Greg Abbott, is “a little piss baby” is viewpoint discrimination in violation of the law.

Source: Subreddit Discriminates Against Anyone Who Doesn’t Call Texas Governor Greg Abbott ‘A Little Piss Baby’ To Highlight Absurdity Of Content Moderation Law | Techdirt

The EU Copyright Directive contains one of the worst ideas in modern copyright: what amounts to a requirement to filter uploads on major sites.  Despite repeated explanations of why this would cause huge harm to both creators and members of the public, EU politicians were taken in by the soothing words of the legislation’s proponents, who even went so far as to deny that upload filters would be required at all.

The malign effects of the EU Copyright Directive have not yet been felt, as national legislatures struggle to implement a law with deep internal contradictions.  However, upload filters are already used on an ad hoc basis, for example YouTube’s Content ID.  There is thus already mounting evidence of the problems with the approach.   A new report, from the Colombian Fundación Karisma, adds to the concerns by providing additional examples of how creators have already suffered from upload filters:

This research found multiple cases of unjustified notifications of supposed violation of copyright directed at content that is either part of the public domain, original content, or instances of judicial overreach of copyright law. The digital producers that are the target of these unjust notifications affirm that the appeal process and counter-notification procedures don’t help them protect their rights. The appeals interface of the different platforms that were taken into account did not help resolve the cases, which leaves digital creators defenseless with no alternative other than what they can obtain from their contacts. This system damages the capacity of these producers to grow, maintain and monetize an audience at the same time that it affects the liberty of expression of independent producers as it creates a strong disincentive for them. On the contrary, this system incentivizes the bigger production companies to claim copyright on content to which they hold no rights.

As that summary notes, it’s not just that material was blocked without justification. Compounding the problem are appeal processes that are biased against creators, and a system that is rigged in favor of Big Content to the point where companies can falsely claim copyright on the work of others. The Fundación Karisma report is particularly valuable because it describes what has been happening in Colombia, rounding out other work that typically looks at the situation in the US and EU.

Source: Study Shows That Copyright Filters Harm Creators Rather Than Help Them | Techdirt