RIAA in Oral Argument: Yout Has ‘Pled Itself Out’ of Claiming It Doesn’t Violate DMCA

Yout’s Digital Millennium Copyright Act appeal against the Recording Industry Association of America “involves a number of novel questions arising out of the three distinct provisions” contained in the statute’s Section 1201, said Yout’s counsel, Evan Fray-Witzer of Ciampa Fray-Witzer, during 2nd U.S. Circuit Court of Appeals oral argument Monday (docket 22-2760).

Yout contends that the district court improperly granted the RIAA’s motion to dismiss Yout’s complaint for a declaratory judgment that its technology doesn’t violate the DMCA, “erroneously concluding” that its YouTube-ripping software platform was a circumvention tool that’s prohibited by the DMCA (see 2302030005). The RIAA’s argument is that Yout can’t “plausibly plead” it doesn’t violate the DMCA. Both sides asked the 2nd Circuit in May to hold oral argument in the appeal (see 2305190025).

The DMCA’s provisions are designed to protect copyright holders “who have employed effective technological measures intended to prevent the public from accessing or copying their copyrighted content and prohibit the trafficking of circumvention tools that are designed to thwart those technological measures,” said Fray-Witzer. The district court “misinterpreted both the statute and the relevant case law” when it dismissed Yout’s complaint against the RIAA, he said.

There’s “a much simpler reason” why the 2nd Circuit should reverse the district court’s dismissal, said Fray-Witzer. “A proper analysis of the legal issues in this case requires that this court have a fully developed factual record before it,” he said. But that factual record “is something the court does not have because the case was dismissed at the Rule 12 stage, despite a preponderance of disputed factual issues and questions of mixed fact and law that should have precluded such a result,” he said.

This is the type of case “that calls out for expert witnesses,” said Fray-Witzer. Almost every case the RIAA has cited in its briefs in defending against Yout’s lawsuit “was decided after the district court heard expert testimony,” he said.

Yout “has pled itself out of a declaratory judgment claim” that it doesn't violate the DMCA, said RIAA's counsel, Rose Ehler of Munger Tolles. Yout operates “a stream-ripping service,” said Ehler. YouTube “is an on-demand streaming service,” she said. “The access that one can get through YouTube is streaming-only. That’s what RIAA members put their sound recordings on YouTube for.” One can use Yout to go to YouTube “and create a perfect HD copy of an audio file or a video file,” said Ehler. She acknowledged under questioning from Circuit Judge Richard Sullivan that online instructions are available at various websites about how one can do the same without Yout. “But what Yout does is enable it on an automated basis,” she said.

If one were to download a music video file from YouTube “in order to then seed piracy on the internet, that would be circumvention” under the DMCA, said Ehler. “What Yout is doing is automating that process,” she said. Anyone could use Yout to “download hundreds or thousands of perfect HD copies that then could proliferate throughout the internet,” she said. “That is the sort of circumvention tool that the DMCA intended to ban” with the anti-trafficking provisions of Section 1201, she said.

The RIAA disagrees with Yout that discovery is needed in the case, said Ehler. The arguments in Yout’s own complaint “I think are absolutely enough to plead Yout out of a claim” that its technology doesn’t violate the DMCA, she said. “Their claims are not plausible as alleged,” she said. “Any further information that would be developed” through discovery “would prove that,” she said.