Yout Software Not a ‘Circumvention Tool’ Under DMCA: 2nd Circuit Brief
The district court “improperly” granted the Recording Industry Association of America its motion to dismiss Yout’s Digital Millennium Copyright Act complaint, “erroneously concluding that Yout’s software platform was a circumvention tool,” said Yout’s opening brief Thursday (docket 22-2760) at the 2nd U.S. Circuit Court of Appeals. The lower court’s dismissal came “despite the preponderance of disputed issue of fact -- and the clear need for discovery and expert testimony,” it said.
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Yout brought the action seeking a declaratory judgment that its software platform wasn't a circumvention tool under Section 1201 of the DMCA, said the brief. It also sought actual damages, costs and attorney’s fees resulting from RIAA’s “improper” anti-circumvention DMCA notices warning Google to “delist” Yout from YouTube, which “defamed and disparaged Yout and its software platform,” it said. RIAA's answering brief in the 2nd Circuit is due Feb. 23.
Neither YouTube nor the RIAA-member labels employ any form of encryption on the content available on YouTube, “the inclusion of which would eliminate the ability of the Yout software to allow Yout’s users to make copies of the works,” said the brief. “Not only is there a lack of protection against such copying, the process can be accomplished by anyone with a web browser without the need for Yout’s services,” it said. Yout’s software simply automates “the manual process anyone could use to download videos,” it said.
The case asks the 2nd Circuit “to examine for the first time novel questions arising under certain provisions” of the DMCA, said the brief. Section 1201 is designed to provide protection to copyright holders who have employed “effective technological measures to prevent the public from accessing or copying their copyrighted works without authorization or permission,” it said. The statute also bars circumvention tools “designed to thwart such effective technological measures,” it said.
What makes this case unique is that the copyright holders here “did not themselves employ any technological measures” to prevent copying, said the brief. “The works at issue are made freely available to any person in the world with a connection to the Internet and a web browser,” it said. “There are no technological measures that effectively prevent the access or copying of the works at issue, with or without the use of Yout’s services.
RIAA and its member labels knew when they sent their DMCA notices to Google that Yout’s software platform “does not circumvent digital copyright mechanisms under the law” and does not infringe their rights, “via secondary copyright infringement or otherwise,” said the brief. They chose to send the notices anyway, it said.
The notices “falsely caused third parties to believe Yout engaged and continues to engage in illegal and unlawful conduct,” said the brief. The notices caused Yout’s customers to cancel subscriptions, it said. They also caused PayPal to shut down Yout’s account, “causing Yout further significant monetary and reputational damage,” it said. Yout told the district court Jan. 9 it’s in such dire financial straits it urgently needs the stay it requested, pending appeal, in RIAA’s motion to cover attorney fees in the case (see 2301090045). The district court denied RIAA’s motion about a week later (see 2301170031).
The district court, in granting RIAA’s dismissal, “incorrectly concluded” that Yout violates Section 1201's “access control” prohibitions, said the brief. The district court improperly assumed the existence of a “technical measure” to prevent the copying of content from YouTube, it said. Yout “cannot violate” Section 1201, “which prohibits direct circumvention of a technological measure designed to limit access to a work,” because there was no such technological measure in place, it said.
Yout’s second amended complaint “plausibly” alleges a violation of DMCA Section 512's liability limitations because the RIAA notices to Google “knowingly misrepresented that Yout engaged in conduct tantamount to secondary copyright infringement,” said the brief. Because Yout demonstrated that the RIAA’s notices“contained false statements of fact that disparaged Yout,” the district court’s dismissal of Yout’s claims “for business disparagement and defamation per se must be reversed,” it said.