Copyright and Control Freaks

In view of the implementation deadline in summer 2021, it is becoming increasingly apparent what the transformation of the EU's disgraceful Copyright Directive in Germany could look like. The draft of the Federal Ministry of Justice and Consumer Protection is now available and is - just like the Directive on which it is based - highly controversial, in particular in terms of the possible implementation of upload filters.

The directive requires platforms to censor copyrighted material as a user attempts to upload a post. It requires the platform to scan the post prior to publication and block it should it contain copyrighted material. However the directive also specifies some legally specified exemptions without the need for licensing, e.g. parodies or so-called pastiches, i.e. remixes, memes, GIFs, mashups, fan art, fan fiction, covers or sampling. But can the automated upload filters detect that copyright material in a post is a pastiche or not?

Lexoligy describes a German variation adding some metrics to this legally permitted fair use:

The draft German Act provides for a minor exception clause for non-commercial use in social media. According to this, reproductions for non-commercial purposes of a small scale will be allowed, even if they have not been licensed (e.g. up to 20 seconds of a film or sound track, 1,000 characters of a text or photographs with a data volume of up to 250 kB).

If the public reproduction of a content is not permitted, the service provider is obliged to immediately remove the corresponding content or block access to it upon notification of the rights holder. If the content is permitted the platform must pay the author an appropriate remuneration.

It seems that the envisaged censorship process is for the platform to block the content automatically and then give an opportunity for the user to justify why the content should not be blocked. But this process doesn't sound very viable for an average social media poster. And perhaps the only practical outcome is for all copyright material to be blocked from all user posts with just a few savvy 'influencers' able to work the system.

youtube-dl is a popular free software tool for downloading videos from YouTube and other user-uploaded video platforms. GitHub recently took down youtube-dl's code repository at the behest of the Recording Industry Association of America, potentially stopping many thousands of users, and other programs and services, that rely on it.

On its face, this might seem like an ordinary copyright takedown of the type that happens every day. Under the Digital Millennium Copyright Act (DMCA), a copyright holder can ask a platform to take down an allegedly infringing post and the platform must comply. (The platform must also allow the alleged infringer to file a counter-notice, requiring the copyright holder to file a lawsuit if she wants the allegedly infringing work kept offline.) But there's a huge difference here with some frightening ramifications: youtube-dl doesn't infringe on any RIAA copyrights.

RIAA's argument relies on a different section of the DMCA, Section 1201. DMCA 1201 says that it's illegal to bypass a digital lock in order to access or modify a copyrighted work. Copyright holders have argued that it's a violation of DMCA 1201 to bypass DRM even if you're doing it for completely lawful purposes; for example, if you're downloading a video on YouTube for the purpose of using it in a way that's protected by fair use. (And thanks to the way that copyright law has been globalized via trade agreements, similar laws exist in many other jurisdictions too.) RIAA argues that since youtube-dl could be used to download music owned by RIAA-member labels, no one should be able to use the tool, even for completely lawful purposes.

This is an egregious abuse of the notice-and-takedown system, which is intended to resolve disputes over allegedly infringing material online. Again, youtube-dl doesn't use RIAA-member labels' music in any way. The makers of youtube-dl simply shared information with the public about how to perform a certain task204one with many completely lawful applications.

We've put together an explainer video on this takedown, and its implications for free speech online.

Please share this video with others who use YouTube and other video uploading services.

Update: Restored to GitHub

17th November 2020. See article from zdnet.com

GitHub has reinstated the youtube-dl open-source project, a Python library that lets users download the source audio and video files behind YouTube videos.

In a blog post today, GitHub said the library did not actually break Section 1201 of the DMCA, citing a letter it received from Electronic Frontier Foundation lawyers , who decided to take up the youtube-dl project's case.

In the letter, the EFF team explained that Google does not have any technical measures in place to prevent the download of its videos -- all of which need to be made freely available to all kinds of apps, browsers, smart TVs, and more.

Hence, EFF lawyers argued that the library could never be taken down under Section 1201 of the DMCA since the library doesn't actually circumvent any sort of copyright protection system in the first place.