ITP Techblog

Software development platform Github has created a US$1 million legal fund to fight copyright infringement claims against open source developers after a tangle with the US music industry.

Microsoft-owned Github has also restored the code of a project, YouTube-dl, which it had removed from its vast online code repository, after receiving a take-down order from the Recording Industry Association of America (RIAA).

That body has in the past been very active in pursuing internet pirates using file-sharing systems to download albums and songs. But last month it turned its attention to the developers of YouTube-dl, complaining that the popular software that was first developed in 2006, not long after YouTube's creation, facilitates piracy by allowing people to download Youtube videos for offline viewing.

That functionality is, officially anyway, a feature available only to YouTube Premium users - as a subscriber, I use it all the time to save videos for later to watch without consuming mobile data.

But is an unofficial tool allowing YouTube users to do the same thing a breach of the Digital Millennium Copyright Act which "criminalises production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works"?

Actually, no circumvention

Github initially thought so. On receiving the RIAA's complaint, alleging a breach of section 2101 of the Act, it removed the code. But then it received a letter from the Electronic Frontier Foundation, pointing out that YouTube-dl "does not violate section 1201 of the DMCA because it does not "circumvent" any technical protection measures on YouTube videos".

While the RIAA claimed the software managed to unencrypt a video file on YouTube, breaking the website's digital rights management, it wasn't the case at all.

"Youtube-dl stands in place of a Web browser and performs a similar function with respect to user-uploaded videos," wrote Mitchell L. Stoltz, Senior Staff Attorney at the EFF. 

"Importantly, Youtube-dl does not decrypt video streams that are encrypted with commercial DRM technologies, such as Widevine, that are used by subscription video sites, such as Netflix," he added.

What had really got the RIAA hot under the collar was some references in the software code's documentation to copyrighted songs. But Youtube-dl only allows streaming of a few seconds of each song to verify that the software is working. It didn't contain full copies of the songs. 

The EFF also made the argument that, like with the Bittorrent file-sharing software, Youtube-dl has numerous legitimate uses.

Legitimate uses

"It is used by journalists and human rights organisations to save eyewitness videos, by educators to save videos for classroom use, by YouTubers to save backup copies of their own uploaded videos, and by users worldwide to watch videos on hardware that can't run a standard web browser, or to watch videos in their full resolution over slow or unreliable Internet connections."

Github has reflected on the incident and undertaken to make some changes, the creation of the US$1 million legal fund being the most significant. It will also be more circumspect about future copyright infringement claims, requiring that they be subject to a technical and legal review before code is removed from Github. 

If a dispute drags on, the code will remain in place until it is resolved and developers will be given the opportunity to amend it before takedown.

The RIAA hasn't responded to Github's reversal yet, but open source developers have applauded Github's stance. 

New Zealand's own Copyright Act is in the midst of a review kicked off in 2018 and which could see some potential changes to clarify where technology can play a legitimate role, such as in bypassing geoblocking measures on DVDs. Format shifting and time-shifting may also get some attention.