Yout amicus: fighting for developers’ right to innovate

Our mission to accelerate human progress through developer collaboration requires us, from time to time, to fight against legal developments that would needlessly impair developers’ right to innovate. That’s why GitHub has filed an amicus brief in the appeal of Yout LLC v. Recording Industry of America, Inc.

What is the case about?

This case involves a company called Yout that says it uses a configured version of youtube-dl to offer an online service that helps users download YouTube videos. Long-time readers of this blog might remember that we processed a takedown request against the youtube-dl software, a decision we reversed after listening to extensive feedback from our developer community, and after we became aware of new facts about how youtube-dl operates. That experience pushed us to overhaul and make significant investments in our DMCA process in order to take the most developer-friendly approach within the law.

For GitHub, the crux of this case is that the district court found a violation of the DMCA’s provisions in Section 1201(a) that prohibit circumventing an access control on copyrighted works. But how is this possible when YouTube videos are publicly accessible? The district court said that not having a download button constituted an effective technological protection measure preventing access to a work, reasoning that ordinary users in the ordinary course couldn’t download YouTube videos. Our amicus tells the appeals court that this reasoning is legally wrong and threatens developer innovation.

What does Section 1201(a) cover?

Section 1201(a) of the DMCA prohibits the circumvention of a “technological measure” that effectively controls access to a copyrighted work. Violators face possible fines and criminal penalties of up to $500,000 and five years of imprisonment for first offenses.

We know from our experience reviewing takedown requests that 1201 cases can be difficult to process. They often require deep technical expertise to understand the technologies involved, and the statute itself was intentionally written with broad language to account for new technical advancements. Our own process has a technical review component. Given these complexities, it’s understandable that sometimes parties, judges, and even beloved online developer collaboration platforms (see above) make the wrong call. We’ve all been there. But one of the wonderful things about being wrong on the internet is that people from all over can file an issue or bug report and tell you where you went wrong. Amazingly, the same is true of US appellate court cases¹.

What we told the court

The main problem with the district court’s reasoning is that it mixes up access to a work with the later use of a work. Since YouTube videos are publicly accessible via a URL, the ability to download them via the use of tools like youtube-dl is no longer a 1201(a) question. Instead, the court should analyze whether this use falls within copyright’s permitted uses, including fair use. But because the court deemed the lack of a download button to be an “effective technological protection measure” under 1201(a), fair use exceptions don’t apply.

In our amicus brief, we explain that the court’s “no download button” analysis is not legally sound because it threatens countless other software tools that are widely considered to be permissible and beneficial, including:

• Ad blockers
• Screen readers
• Web archivers (noting that youtube-dl itself is commonly used for archival purposes to preserve video files, such as “preserving evidence in the fight for human rights”)
• Browser extensions that:
  • Enable dark mode on webpages
  • Translate webpages to other languages
  • Replace fonts on webpages with ones that are more easily readable for people with dyslexia
  • Improve the print layout of webpages
• Custom media players

While 1201(a) on its face covers access controls like encryption-based DRM measures, it shouldn’t cover measures that merely influence how people experience available content while potentially criminalizing the use of many of the most widely installed browser extensions, screen readers, web archivers, and other critical tools underpinning today’s internet experience. As the Supreme Court noted in the context of the Computer Fraud and Abuse Act (CFAA) in Van Buren v. United States, an interpretation that turns millions of otherwise law-abiding citizens into criminals should be treated with skepticism.² The same is true here in the case of the district court’s interpretation of 1201(a).

Further, criminalizing efforts to improve the way people experience available content strikes at the very heart of innovation. When the DMCA was first signed into law 25 years ago, the ordinary course of experiencing content on the web involved listening to some of the most soothing sounds known to humankind and hoping that no one else tried to use the phone. Developers have created countless innovations since 1998 to improve the way we experience available content, enabling creativity and interactivity in ways never contemplated by lawmakers at the time.

Developers need assurance that they have the freedom to tinker, experiment, and develop beneficial new technologies without fear of fines and imprisonment. If courts expand the scope of 1201(a) to cover such innovations, as the Yout court’s rationale would, we risk setting back human progress by chilling curiosity.

Read the amicus brief for our full arguments.

GitHub is committed to protecting developers’ right to innovate, and participates as amicus in important cases that can threaten these rights. For another recent example, see our amicus brief in the Supreme Court case analyzing Section 230 where we emphasized the importance of Section 230 to enable developer innovation around algorithms, and protect platforms like GitHub that host those innovations.

Notes

Written by

Kevin Xu

@khxu