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At a minimum, Google's counsel testified under penalty of perjury in this takedown letter that they took Fair Use into consideration, so there must be at least

At a minimum, Google's counsel testified under penalty of perjury in this takedown letter that they took Fair Use into consideration, so there must be at least some application here. (And if there isn't, that sure is a strange sentence to have in the letter - almost as if they are misusing this takedown letter template after all!) Fair Use is about using copyrighted content, which is widely shackled behind DRM. Any court can easily see that in order to exercise your right to use that content in a Fair Use sort of way, you must break the DRM. Therefore, the existence and availability of DRM-breaking tools is a necessary condition for Fair Use to be exercised at all in conjunction with the modern media landscape.

bawolff 6y ago
DMCA does not include fair use as an allowable reason to circumvent DRM. That is one of the reasons why DRM sometimes shows up in weird places because it effectively limits fair use rights (see also all the right to repair stuff that people have been talking sbout lately) IANAL
- pbhjpbhj 6y ago
  >DMCA does not include fair use as an allowable reason to circumvent DRM. // Could you cite the law you're referring to here please? The UK CDPA as amended to follow the EU's Marrakech directive seems to say anything that prevents you from exercising your Fair Dealing rights to make content accessible for disabled people is void if it contradicts these rights. This seems necessarily to allow for circumvention of DRM (for people with disabilities and specific registered companies) but that also appears to mean production of circumvention means needs to be legal otherwise such accessibility will be impossible.
  - freeone3000 6y ago
    DMCA is the Digital Millennium Copyright Act, the latest amendment to USA copyright law. Text of the law is here: https://www.copyright.gov/legislation/dmca.pdf https://www.copyright.gov/legislation/dmca.pdf . GitHub is a division of a US company, Microsoft, so it is bound by US law.
zinekeller 6y ago
Actually, it is more complicated than that. To exercise fair use defense (yes, it is a defense and not a right in US Copyright law), you must be able to use a process that is non-invasive (as stated in DMCA). So, if a DRM is preventing you to screenshot it, you are actually required to use a camera and exercise the analog hole. This is definitely disappointing, and I am not personally endorsing it, but the law as it stands does not lend credence. (Also, what RIAA is trying to remove is the code that allows to get the music video files from YouTube, which is served differently to normal videos (not just the test units in question). This was conspicuously absent from all discussions I've read.)
- jchw 6y ago
  > (Also, what RIAA is trying to remove is the code that allows to get the music video files from YouTube, which is served differently to normal videos. This was conspicuously absent from all discussions I've read.) It's absent because RIAA's intent is not stated. They did a blanket takedown, unprompted. As far as I can tell they never requested any particular modification. IIRC the only hint that it might be related is a mention that the rolling cipher algorithm that YouTube-dl "circumvents" was ruled to be DRM under German law. However, the bulk of the DMCA seems to be leveled at the marketing of ytdl as a circumvention tool, citing unit tests containing metadata referencing RIAA-owned content (unit tests, apparently, are now part of 'marketing,' I guess.)
  - zinekeller 6y ago
    > However, the bulk of the DMCA seems to be leveled at the marketing of ytdl as a circumvention tool, citing unit tests containing metadata referencing RIAA-owned content (unit tests, apparently, are now part of 'marketing,' I guess.) This is definitely untested in court but I won't be surprised if it is indeed part of marketing. The problem with the tests is that they do download the video, even if it is a small amount and since ytdl does not reject the video for downloading at all it is technically infrigment, probably without a valid fair use defense. If ytdl has actively rejected that (for example if the test units are specifically to prevent downloading those types of videos), they may have a stonger defense against RIAA claims.

bawolff 6y ago

DMCA does not include fair use as an allowable reason to circumvent DRM. That is one of the reasons why DRM sometimes shows up in weird places because it effectively limits fair use rights (see also all the right to repair stuff that people have been talking sbout lately) IANAL

pbhjpbhj 6y ago
>DMCA does not include fair use as an allowable reason to circumvent DRM. // Could you cite the law you're referring to here please? The UK CDPA as amended to follow the EU's Marrakech directive seems to say anything that prevents you from exercising your Fair Dealing rights to make content accessible for disabled people is void if it contradicts these rights. This seems necessarily to allow for circumvention of DRM (for people with disabilities and specific registered companies) but that also appears to mean production of circumvention means needs to be legal otherwise such accessibility will be impossible.
- freeone3000 6y ago
  DMCA is the Digital Millennium Copyright Act, the latest amendment to USA copyright law. Text of the law is here: https://www.copyright.gov/legislation/dmca.pdf https://www.copyright.gov/legislation/dmca.pdf . GitHub is a division of a US company, Microsoft, so it is bound by US law.

zinekeller 6y ago

Actually, it is more complicated than that. To exercise fair use defense (yes, it is a defense and not a right in US Copyright law), you must be able to use a process that is non-invasive (as stated in DMCA). So, if a DRM is preventing you to screenshot it, you are actually required to use a camera and exercise the analog hole. This is definitely disappointing, and I am not personally endorsing it, but the law as it stands does not lend credence. (Also, what RIAA is trying to remove is the code that allows to get the music video files from YouTube, which is served differently to normal videos (not just the test units in question). This was conspicuously absent from all discussions I've read.)

jchw 6y ago
> (Also, what RIAA is trying to remove is the code that allows to get the music video files from YouTube, which is served differently to normal videos. This was conspicuously absent from all discussions I've read.) It's absent because RIAA's intent is not stated. They did a blanket takedown, unprompted. As far as I can tell they never requested any particular modification. IIRC the only hint that it might be related is a mention that the rolling cipher algorithm that YouTube-dl "circumvents" was ruled to be DRM under German law. However, the bulk of the DMCA seems to be leveled at the marketing of ytdl as a circumvention tool, citing unit tests containing metadata referencing RIAA-owned content (unit tests, apparently, are now part of 'marketing,' I guess.)
- zinekeller 6y ago
  > However, the bulk of the DMCA seems to be leveled at the marketing of ytdl as a circumvention tool, citing unit tests containing metadata referencing RIAA-owned content (unit tests, apparently, are now part of 'marketing,' I guess.) This is definitely untested in court but I won't be surprised if it is indeed part of marketing. The problem with the tests is that they do download the video, even if it is a small amount and since ytdl does not reject the video for downloading at all it is technically infrigment, probably without a valid fair use defense. If ytdl has actively rejected that (for example if the test units are specifically to prevent downloading those types of videos), they may have a stonger defense against RIAA claims.