censortubeIn 2020, the RIAA infuriated many players in the open source community by targeting YouTube-ripping tool youtube-dl.

The RIAA sent a takedown notice to GitHub, alleging that the software bypassed technological protection measures, in violation of the DMCA.

GitHub initially complied but later changed course. After consulting legal experts, including those at the EFF, it restored the youtube-dl repository. GitHub also launched a million-dollar defense fund to assist developers in similar disputes.

Targeting Youtube-dl’s Host

This episode was a massive setback for the music industry, which had been fighting stream-ripping tools for years. However, instead of laying down their arms, the music companies went after Uberspace, youtube-dl’s website hosting company in Germany.

A few days ago this lawsuit resulted in a clear victory for Sony Entertainment, Warner Music Group and Universal Music. The district court of Hamburg essentially ruled that youtube-dl violates the law as it bypasses YouTube’s technological protection measures.

Going one step further, the court also concluded that as a host, Uberspace can be held liable for youtube-dl’s activity. The hosting provider received a takedown notice for the website in the past but continued to host it. According to Uberspace, the software wasn’t clearly illegal but the court ruled that the company should have known better.

With the dust beginning to settle, TorrentFreak spoke with Uberspace owner Jonas Pasche, who has decided to appeal the ruling. According to Pasche, the court made a big mistake that could have far-reaching consequences.

Uberspace Responds to Court Verdict

For starters, Pasche still doesn’t believe that it’s clear that youtube-dl violates copyright law. More importantly for his own business, however, is the court’s finding that a hosting company can be held liable for doubting the validity of a takedown request.

German law requires hosting companies to remove the content as soon as they learn about ‘clear’ or ‘obvious’ illegal activity. That’s an easy decision in many cases, but Uberspace paused for thought in youtube-dl’s case, presumably for good reason.

“Just because someone ‘claims’ that something hosted with us is illegal, it doesn’t necessarily need to be true. So when we received the notice from the Rasch law firm that we’re hosting youtube-dl which they claimed to be illegal, our first reaction was: Really? Is it..? Let’s do some research,” Pasche tells us.

“And boy, did we do some research. Starting with a simple Google search for ‘youtube download legal’, there is a TON of sources – well-known, serious, public magazines – basically all stating: Yeah, it’s totally legal to download videos from YouTube.”

youtube-dl legal search

Uberspace knows that answers that appear through Google should be carefully weighed. So Uberspace continued looking for answers. The company reviewed YouTube’s protection measures, for example, which didn’t appear to involve any type of encryption for free and publicly available videos.

‘Clearly Not Clearly Illegal’

Also, Uberspace couldn’t find any claims from YouTube itself that their content has effective copy protection. If anything, the company’s searches suggested that the opposite was true.

For example, GitHub eventually concluded that youtube-dl wasn’t violating US copyright law, a decision that was based on input from the legal experts at EFF. In addition, Uberspace consulted a lawyer in Germany who reached a similar conclusion.

“We also got ourselves informed about ‘fair use’ under German law. We even appointed a lawyer, at our own cost, who did his own research and also came to the conclusion that what youtube-dl does is perfectly legal and covered by fair use,” Uberspace’s owner tells us.

Uberspace Keeps Youtube-dl Online

Based on its own investigation into youtube-dl, Uberspace decided to keep the website online. The company informed Rasch, the music company’s law firm, of its decision, which responded with some follow-up questions.

For example, the law firm wanted to know how many times the youtube-dl software had been downloaded. However, Uberspace couldn’t answer this question since it didn’t host or distribute the actual code, which was stored on GitHub.

“I guess they didn’t like my answer, but that’s their problem, not mine. How about asking GitHub for download numbers? We suggested that to them! I’m sure they didn’t even ask over there.”

uberspace moon

The biggest disappointment and threat ultimately comes from the court’s conclusion that Uberspace is liable for youtube-dl’s alleged wrongdoing because it failed to take the website offline. Apparently, Uberspace should have known that youtube-dl was illegal, even though that wasn’t clear.

“This is ridiculous. And it’s devastating,” Pasche says, fearing that the court order will have a chilling effect on the hosting business.

“The consequences of this will be that hosting providers receiving complaints will most likely kick out their customers without a court ruling, for things that might be perfectly legal. Otherwise, they have to fear being held responsible by a court that might see things differently.”

Hosting Companies as Internet Police?

In a way, the court order requires hosting companies to police their network, which requires weighing advanced legal issues that even legal experts have different opinions on.

Ultimately, many hosting companies will likely take the cautious option and terminate customer accounts to avoid liability.

“This court decision basically takes away the option of staying neutral for a hosting provider,” Pasche says.

“They will be unable to say ‘it might be unlawful, but it’s not really clear. Let a court decide about this, and until then continue to host it. After all, we have a hosting contract to fulfill!’ In the future, they will have to say ‘It might be unlawful, so better let’s get rid of it, without a court order’.”

“It’s just too risky to insist on a court decision because we might face damages for ‘helping’ with illegal activity.”

Pasche also finds it bizarre that the court ordered Uberspace to answer various questions it can’t answer. This includes the number of youtube-dl downloads, which is information that it simply doesn’t have.

GitHub?

There is a much more logical target in this case in the form of GitHub, which actually hosts the software. For some reason, the music companies have decided to go after Uberspace instead.

“GitHub isn’t some shady bulletproof hoster located on some cozy island. It’s a Microsoft-owned corporation. They have processes to deal with complaints. They have a legal team. They could perfectly block youtube-dl, even just in Germany,” Pasche says.

“What’s the point of suing the hosting provider of a website pointing to that GitHub repository, when they had perfectly established ways to file a complaint with the hosting provider of the actual software they want to see banned?”

The music companies did approach GitHub earlier, of course, but went after Uberspace when their DMCA takedown was denied. According to Pasche, the music companies chose to pick an ‘easier’ target after this setback.

“It really looks like they just didn’t want to face what they might regard as a ‘real’ opponent; Microsoft. Instead, they’re going for what they might have regarded as an ‘easy target’. This is exactly the behavior of bullies.”

Legal Battle Continues

Uberspace doesn’t like being bullied, so it will continue to fight back through the appeal court. In fact, the company is determined to fight this battle to the bitter end, whatever it takes.

Pasche believes that the recent court order effectively opens the door to increased censorship, and he hopes to shut that door again before it’s too late.

“This is a shameful day for the freedom of speech. It’s paving the way for privatized censorship. Do we as a society really want this? We strongly believe we’re on the right side of history here. Everyone except the music industry knows this,” he concludes.

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