District Court 'Erroneously Concluded' Its Software Is a Circumvention Tool: Yout

The district court “erroneously concluded that Yout’s software platform was a circumvention tool under 17 U.S.C. §1201, a conclusion that it could not possibly have reached at this early stage of the litigation,” said the ripping software company’s Thursday reply brief (docket 22-2760) in a copyright infringement case in the 2nd U.S. Circuit Court of Appeals.

The case doesn’t come before the appeals court following a trial during which the parties presented competing expert witnesses “and a fully-developed factual record,” said Yout. “Nor does it come after a motion for summary judgment,” with the benefit of full discovery, deposition testimony, documentary evidence or an evidentiary hearing and grant of a preliminary injunction, Yout said.

The Recording Industry Association of America’s May answering brief (see 2305050001) said YouTube’s users can watch and listen to music videos for free on its ad-supported service, but those users don’t get access to the digital files “that contain the record companies’ valuable copyrighted works,” said the RIAA's answering brief in Yout's appeal of the district court’s dismissal of its action for a declaratory judgment that its software platform wasn't a circumvention tool under Section 1201 of the Digital Millennium Copyright Act.

Yout's service enables its users to gain “unauthorized access to the digital music files from YouTube and download copies,” said the RIAA brief. “The purpose of Yout is to bypass YouTube’s technological restrictions on accessing the digital copies of works streamed on YouTube,” it said. Yout’s users “have no need to purchase authorized subscriptions or to frequent ad-supported streaming services,” and Yout “pays nothing to the owners of the copyrighted content that is plundered,” said RIAA.

In its reply, Yout said RIAA argues “not only is it entitled to rely on technology that it claims to have been put in place by YouTube," but it makes no difference whether YouTube intended for the technology to limit the access to, or the ability to copy, the videos "that are freely available on YouTube to anyone with an internet connection and a browser,” Yout said.

RIAA’s position is “at odds with the case law of this Circuit and elsewhere,” said the brief. It is “presumably the only position the RIAA can take given that YouTube has neither come to the RIAA’s aid as an amicus nor have the parties had the opportunity to take discovery from YouTube (or any discovery for that matter) given the District Court’s improvident allowance of the RIAA’s 12(b)(6) motion to dismiss," Yout said.

In its answering brief, the RIAA relies most heavily on the 2nd Circuit’s decision in United City Studios v. Corley, said the brief. That case was decided “only after a full bench trial” with testimony of the parties’ witnesses, competing expert witnesses, documentary evidence and full discovery, “which allowed the parties to present such evidence at trial,” Yout said. The issues at play in this case involve "complex, highly technical questions that are either factual or mixed questions of fact and law that require expert testimony," and which “can only be resolved by a factfinder after the parties have had the opportunity to conduct full discovery,” Yout said.

RIAA asserts the Yout.com website has no purpose but to allow users to infringe upon its members’ copyrighted works and is marketed as serving that purpose, said the brief. Though it’s “true” the RIAA’s members provide their works to YouTube to make them freely available to anyone with access to the internet and a computer with an internet browser, “such music represents only a small portion of the totality of the videos available on YouTube,” said the brief, citing 2016 figures from Digital Music News saying music-related videos account for 2.5% of YouTube’s traffic.

Yout’s service is “content-neutral,” providing "nothing more than a recording device” that uses publicly available information “available to anyone who cares to look for it, without the need to circumvent any technological measures,” said the brief. The service has “significant commercial uses other than to circumvent protections afforded by a technical measure that effectively protects the rights of a copyright owner,” it said.

“To the extent that the RIAA thinks otherwise, it should have the opportunity to prove that theory… at a trial following discovery,” said the brief. The district court “erroneously concluded” that Yout’s software was a “circumvention tool” under 17 U.S.C. §1201,” it said. The appeals court should reverse the district court’s judgment dismissing its complaint and remand, it said.