After the RIAA’s attempt last year to have youtube-dl removed from Github, YouTube-ripping service Yout.com carried out a preemptive strike in an effort to have itself declared legal.

Yout.com filed a complaint in a Connecticut court, arguing that previous actions by the RIAA to have its homepage delisted from Google, based on alleged circumvention of YouTube’s ‘rolling cipher’ technology, were wrongful and damaged its business.

Early Argument and Responses

In its motion to dismiss, the RIAA said that just because Yout had “figured out” how to defeat YouTube’s cipher, that didn’t mean the mechanism could not be considered a Technological Protection Measure (TPM) under section 1201 of the DMCA. The industry group also noted that under 17 U.S.C. § 512(f), remedies are only available for misrepresentations in notices regarding alleged copyright infringement, not those that allege circumvention.

Last month, Yout countered the RIAA’s motion to dismiss, arguing that it does not decrypt, bypass or avoid any measures on YouTube. It did not ‘abuse’ YouTube’s technological measures, it ‘used’ them, since YouTube freely gives up signature values to anyone who requests them, including people using only a browser.

Yout further claimed that in order to prove a violation under section 1201, the RIAA must show not only circumvention but also indicate which works had been infringed. Yout also argued that in response to the RIAA’s claim that no remedy is available for misrepresentations regarding circumvention, the RIAA’s notices to Google imply contributory copyright infringement, for which remedies are available.

Response To Yout’s Opposition of RIAA’s Motion to Dismiss

With no obvious end in sight for the legal ping-pong, the RIAA has now filed its response to Yout’s rejection of the industry group’s motion to dismiss. It is notably blunt, leveraging Yout’s description of its service against it, and offering more information on what should be considered a TPM and when circumvention takes place.

“Whether the Yout service circumvents turns on two questions: whether the rolling cipher is an effective TPM and whether the Yout service circumvents that TPM. While Plaintiff tries to confuse the issues, the controlling legal standards and the complaint’s own allegations make clear that the answer to both questions is yes,” the RIAA writes.

Effective Technological Protection Measures

The industry group highlights Yout’s claim that since it was able to obtain YouTube’s signature values without using a “password, key, or other secret knowledge”, then the video platform’s rolling cipher is ineffective. According to the RIAA, this ignores that, under law, a TPM “effectively controls access to a work” if, “in the ordinary course of its operation” it does so without further “processing or treatment”. Yout previously stated that a technological process was required to access the file.

That the process to obtain the signature values was easy for Yout, is irrelevant, the RIAA adds. The industry group says that case law indicates that the effectiveness of a TPM must be assessed from the “level of the ordinary consumer”, not from the level of the party that has successfully bypassed a TPM.

“The very existence of the Yout service shows that the rolling cipher is effective from the level of ordinary consumers. If the rolling cipher were not effective, Plaintiff’s customers would have no need for the Yout service in the first place,” the RIAA writes.

“[T]hey would simply obtain the signature value themselves and gain access to the digital sound recording file. Plaintiff’s service exists precisely because YouTube’s rolling cipher prevents them from turning legal streams on YouTube into illegal downloads. The rolling cipher is an effective TPM.”

RIAA Turns Yout’s Statements Against It

The RIAA continues by taking Yout’s explanation of how its service operates and using that to show that the platform is acting illegally.

“When using an ordinary web browser as intended, [a YouTube user] can only receive a stream of the sound recording through the YouTube video player; the user is not granted access to the location of the digital file and cannot download it. To get around this protection, the Yout service ‘interprets the JavaScript program sent by YouTube’ and ‘derives a signature value’ to access the protected file and so the user can copy the audio stream as an MP3 file,” the label group writes.

In response to Yout’s earlier claim that making “use” of the signature value does not equal “abuse”, the RIAA counters by saying that Yout does not “use” the value in the same way that a YouTube user’s browser does when it streams music from YouTube.

“The Yout service provides its users the means to get around the rolling cipher’s protections so they can get access to the copyrighted file — access that is not authorized by the copyright owners or YouTube. That is circumvention,” the RIAA’s reply reads.

The music group also notes that just because Yout alleges that YouTube’s signature value can be “freely accessed by anyone who seeks it”, it does not follow that there has been no violation of section 1201 of the DMCA. The RIAA notes that RealNetworks was previously held liable for using keys found in authorized DVD players so that the company’s customers could play DVDs and gain unauthorized access to movie files.

“[W]hen the keys were used in the authorized manner, the DVD player only played back the movie. The circumvention consisted of the offending party’s use of the same keys, but for the unauthorized access to a digital copy of the copyrighted work that the user could then copy. The Yout service does the same thing,” says the RIAA.

“Indeed, if consumers could [use their browsers to turn authorized streams into unauthorized downloads], they would not need the Yout service, and Plaintiff would have no business. Thus, the rolling cipher is an effective TPM.”

RIAA’s Anti-Circumvention Notices Sent to Google

Again, the RIAA points out that section 512(f) of the DMCA only penalizes misrepresentations about alleged copyright infringement, not misrepresentations about alleged circumvention.

Yout had previously claimed that the RIAA’s takedown notices, alleging circumvention offenses, “impute allegations of copyright infringement”. The RIAA says the penalties available under section 512(f) relate to regular takedown notices sent under section 512(c)(3)(A), which are required to list the locations of allegedly infringing content.

“RIAA’s notices did not include this information because they were not notices of infringement,” the RIAA notes.

In summary, the RIAA believes the court should rule on its motion to dismiss as a matter of law, without allowing Yout to further amend its complaint. If it did, however, that would only strengthen the RIAA’s case.

“The Court can decide this motion as a matter of law based on Plaintiff’s current, albeit oversimplified, allegations. Further amendment would be futile because any additional facts would only further support RIAA’s legal arguments. RIAA respectfully requests that the Court dismiss Plaintiff’s FAC [First Amended Complaint] with prejudice,” the reply concludes.

The RIAA’s reply in support of its motion to dismiss can be found here (pdf)