On September 30, the U.S. District Court for the District of Connecticut issued its decision in Yout, LLC v. Recording Industry Association of America. The District Court's capacious interpretation of the anti-circumvention provisions in the Digital Millennium Copyright Act of 1998 (DMCA) reinforce the right of copyright owners to control access to their creative content.
In today's digital marketplace, online services for TV, movies, music, and ebooks depend critically on the ability to control subscriber or user access to valuable copyrighted content. Many streaming services, including paid subscription services, make use of scrambling, encryption, and other assorted "technical measures" that restrain—if not entirely prevent—downloading of such content. Section 1201(a)(1) of the DMCA contains what is known as the "effective access provision." It provides that "[n]o person shall circumvent a technological measure that effectively controls access" to a copyrighted work. And Section 1201(a)(2) contains what is known as the anti-trafficking provision. It states that "[n]o person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof" that is designed as well as marketed for circumventing such technical measures and that lacks another commercially significant purpose.
In October 2019, the Recording Industry Association of America (RIAA) sent a notice demanding that Google delist Yout's software service from its search results. Yout's software service allows users to download and create personal copies of audio, video, and combined audio/video files from major streaming sites, including YouTube. RIAA's notice alleged that Yout was circumventing YouTube's access control mechanisms for posted content. After receiving RIAA's notice, Google apparently delisted Yout. And some Yout subscribers cancelled their subscriptions. Yout filed an action against RIAA that included a request for declaratory judgment that Yout's service does not violate Section 1201(a) as well as a "bad faith" take down notice claim against RIAA under Section 512(f).
But in Yout v. RIAA, the District Court granted RIAA's motion to dismiss Yout's action for failure to state a claim for relief. In a Perspectives from FSF Scholars titled "Court Ruling Reinforces Copyright Owners' Anti-Circumvention Rights" and published on October 31, I summarize the court's decision, including its capacious interpretation of what constitutes "a technological measure that effectively controls access to" a copyrighted work. In short, the court held that a technical measure effectively controls access if it is used by an online platform to at least restrain access to copyrighted content by ordinary consumers using that platform in the ordinary course of operation. As a matter of law, the effectiveness of the technical measure does not depend on it preventing unauthorized access in all instances. For future cases involving Section 1201(a)'s anti-circumvention provisions, the District Court's closely reasoned decision in Yout v. RIAA ought to be considered a persuasive authority.
The District Court's decision in Yout v. RIAA also is noteworthy for its dismissal of Yout's claim that RIAA's notice to Google violated Section 512(f) of the DMCA. Section 512(f) prohibits a person from knowingly misrepresenting that a material or activity on an internet website is an infringing use of a copyrighted work. The court concluded that Yout's claim failed "[b]ecause section 512(f) only covers knowing misrepresentations of copyright infringement and not circumvention of a technological measure." Moreover, it found that Yout alleged no facts indicating that RIAA had actual knowledge that it was making a misrepresentation of fact.
Be sure to check out "Court Ruling Reinforces Copyright Owners' Anti-Circumvention Rights."
Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at email@example.com.