In the Digital Millennium Copyright Act of 1998, Congress added to Title 17 of the US Code, which contains the Copyright Act, a Chapter 12, commonly referred to as the Anti-circumvention Act. Chapter 12 includes §1201, which forbids circumvention of copyright protection systems to obtain access to copyrighted works. This protection is in addition to and separate from the rights accorded a copyright owner under §106, the main list of rights protected under copyright. The idea was to make it an offense for hackers to obtain unauthorized access to copyrighted works that are delivered to users (or stored) electronically.

In order to be a system protected from circumvention, the system has to fulfill a number of requirements. The key requirement is that the system has to be a “technological measure” that “effectively controls access” to a copyrighted work.

A recent decision by the federal district court in Connecticut holds that a technological system providing access to copyrightable works need not absolutely prevent access by other means in order to be protected by the anti-circumvention section of U.S.C. title 17.

Yout v. Recording Industry Association of America

The question of what constitutes an effective access control was the subject of Yout v. Recording Industry Association of America (“RIAA”), decided on September 30.

The name of the plaintiff company, Yout, has an uncoincidental resemblance to “YouTube.” The service Yout provided was to enable YouTube users not merely to stream and watch YouTube videos, but also to download and capture copies of those videos. YouTube does not provide a download service, and it objected to Yout’s service. In response, Yout filed a lawsuit seeking a declaration that its service was lawful.

One key issue in the case was whether YouTube’s mechanism for delivering streams to users constituted a protected technological measure under the Anti-circumvention Act.

Yout pointed out that it was possible by means of several publicly known technical steps to download separately the audio part of a YouTube video and its video part. In addition, there exists a program or platform called    youtube-dl that Yout uses to combine the video and audio parts of a YouTube video thereby producing a duplicate of the original that a user could possess. This, argued Yout, meant that YouTube’s system providing only streaming and not downloads did not effectively control access to the works posted on YouTube. Yout argued that such a technological system had to entirely prevent unauthorized access to copyrighted works to qualify for protection under the Anti-circumvention Act.

The RIAA responded that the statute nowhere contained words saying that the access control had to be absolute. The RIAA pointed to the definition of a technological measure that effectively controls access to a work in §1201(a)(3)(b), which states:

A technological measure “effectively controls access to a work” if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.

The Court’s Decision

Possibly, the court could have focused on the word “requires” in the definition and agreed with Yout. Instead, the court focused on the phrase “ordinary course of its operation” and concluded that in the ordinary course users would access YouTube videos through the means provided by YouTube rather than the alternative method used by Yout. The court was evidently impressed by the sophistication required to utilize Yout’s alternative method: at least ten different steps were required using hard-to-find technological controls that would not be obvious to a typical user and, even after that, applying yet another piece of software to combine the audio and video downloads.

The rule of the Yout case, then, is that if access to copyrighted works is provided electronically by a service through a certain means, the use of alternative means to access the copyrighted content will violate the Anti-circumvention Act.

Takeaways

The court's decision appears to eliminate any requirement that the user be either absolutely prevented from accessing the content by any alternative means or that alternative access is unavailable except to highly sophisticated users. If this is the correct interpretation of the applicable statutory provision, it will not matter if, as the years go by, users become increasingly sophisticated and adept at accessing copyrighted content other than through the method supplied by the provider.

The court was able to cite precedent that appears to be in line with its conclusion, although the issue is hardly clear. It will be interesting to see what the Second Circuit has to say in its decision on the pending appeal.