Former lead developer Philipp Hagemeiste:
These videos were never fully downloaded anyways; they are automated test cases where the test just downloads the first 10KB, which amounts to a couple of seconds at most. This is certainly fair use.
These videos were never fully downloaded anyways; they are automated test cases where the test just downloads the first 10KB, which amounts to a couple of seconds at most. This is certainly fair use.
The issue is that they were testing the ability to download music videos in the first place, meaning that the tool was intended at least in part to download music videos subject to copyright.
look... i love the project and everything, but philip is just plain in the wrong and doesn't want to admit it.
That averred infringement is a specific claim. Though weak, it's the strongest specific claim RIAA makes.
Hagemeister's comment establishes that minimal copying is performed in the testing itself, contrary to RIAA's claim.
The infringement does not occur in the source code or test suite itself, it occurs inccidental to testing functionality of the software (that is, it is inherently functional, not expressive), the copies made fall within existing limitations to exclusive rights (§112, §117, §512(a) and (b)), and tests (1), (3), and (4) of §107 fair use.
RIAA's standing on anti-circ §1201 is separate from this question, poorly justified, and likely lacks standing.
"Hagemeister's comment establishes that minimal copying is performed..."
bottom line... they are still downloading and copying the file, regardless of what for or how much which is exactly what the RIAA is claiming. you can cite whatever it is you want, the fact is that youtube-dl is DEAD wrong in what they are doing.
The third test is "the amount and substantiality of the portion used in relation to the copyrighted work as a whole".
https://www.law.cornell.edu/uscode/text/17/107
Again, Hagemeister establishes that a bare minimum copying is performed, sufficient to verify code function. A fact which would overwhelmingly tend to a fair use finding.
you can cite whatever it is you want, the fact of the matter is, that those test cases are going to seal their doom. any lawyer worth their salt can use those as evidence of them writing specific code to target and bypass security protections so they can download copyrighted works.
i can guarantee within the upcoming weeks we will see a lawsuit filed against everyone involved in youtube-dl... and guess what, they are going to lose that case.
From TFA.
Doesn't this apply to all browsers too? A browser has to actually download the copyrighted work to play it back, regardless whether it's "streaming" it or not. Chunks of the file get downloaded and those protections will have to be bypassed to be able to play it back, no?
We know that different media players rely on youtube-dl to be able to play back videos from YouTube. Are they not allowed to be able to play back YouTube content then?
Any statement that includes this phrase can be ignored as bad legal advice.
This doesn't make any sense to me as an attack on a fair use defense.
Fair Use is, by definition, an affirmative defense against copyright infringement. To invoke it, you assume (even if arguendo) that the copying did take place. Fair Use is a legal justification of the copying, not an argument that copying did take place.
So, pointing out that copying took place and spiking the football as if that's the end of the conversation is nonsensical if you're arguing against a Fair Use defense.
And the intent of tests is to test the functionality of this software.
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First off: Fair Use does not exist. It is an assumption, not a defined situation as it requires legal evaluation in court to apply. And on top of that: It is a regional difference and is therefore completely unpredictable whether it applies or not.
Assuming fair use on a platform with a proprietary license that even forbids downloading, while downloading proprietary content specifically to circumvent copyright protection, while fair use does only exist as a "possibibility" inside, and only inside, the US and only after a legal case was decided in at least state level court ... really?
You get sued for downloading 512kB of porn illegaly, just as you can get sued for downloading 10kB of copyrighted youtube videos.
As I said, this was just a suggestion to remove that attack surface. Another attack surface is the trademark violation, but that's a different case.
-- 17 U.S. Code § 107 - Limitations on exclusive rights: Fair use
Is circumventing a copyright mechanism an educational or journalistic purpose? In a testsuite? ...
Even when siding with you, you would need a court case to evaluate whether fair use applies or not.
Again, as I said, unnecessary attack surface. I don't care whether you or I am right or wrong. Nobody of us can be right unless a court case has been made.
It's unnecessary and could have been prevented.
You might wish to show the sportsmanship of admitting your previous error before embarking on further ones.
Therefore I still think that the assumption of Fair Use to apply is wrong. However, the assumption of copyright to apply on the other hand is correct.
But, referring to whether fair use exists or not, I agree with you that technically it exists.
But as the rest of the very same law criminalizes by default, you can still not refer to fair use if you do not have the required-by-law evidence at hand for it to apply.
I think that fair use is almost always nearly impossible to prove, that's why I wrote my statement like this. And I agree that it was worded badly.
If I claim you violated my copyright and you disagree, it will be determined in court. If I claim you violated my copyright and you claim it's fair use, and I disagree, it will be determined in court.
What's the difference?
Your claim is contradicted by statute.
https://www.law.cornell.edu/uscode/text/17/108
Yes, Fair Use is an affirmative defence, not an automatic get-out-of-jail-free card. I clearly state this in the article. (Author)
we hold — for the purposes of the DMCA — fair use is uniquely situated in copyright law so as to be treated differently than traditional affirmative defenses. We conclude that because 17 U.S.C. § 107 created a type of non-infringing use, fair use is "authorized by the law" and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c).
-- 9th Circuit
https://scholar.google.com/scholar_case?case=125676491686801...
(I have a friend who makes a living as a choral composer. Churches, he finds, are the biggest thieves! They believe they don't have to pay for music because they're a Church.)
https://en.wikisource.org/wiki/Copyright_Act_of_1976#%C2%A7_...
Further recommended reading: Lenz v. Universal Music Corp.
-- Lenz v. Universal Music Corp., 801 F. 3d 1126 - Court of Appeals, 9th Circuit 2015
https://scholar.google.com/scholar_case?case=125676491686801...