Argument is that circumventing access controls for downloading is a DMCA violation, even if the resulting download is used for fair use reasons (reaction video or otherwise).

▲

zamadatix 20 hours ago | parent [-]

Agreed. This is where I find (certain parts) of the counterargument for this particular case interesting and am curious to see what the actual ruling eventually is once all of the final arguments are made.

It had always seemed to me the (normal) YouTube video itself has no protection mechanisms applied, counter to the claim that's what the rolling cipher is about. Certain types of "protected" videos (movies, TV, etc) with Widevine and the like sure, but on normal videos there's nothing implemented for protecting the actual content from being captured or replayed. The rolling ciphers mentioned are implemented at the layer of and seemingly only for protecting the delivery because, of course, YouTube wants to be able to say 3rd party clients (which bypass any form of revenue and user behavior data they get for the cost of providing the delivery) are breaking their protections.

The video stream played in the browser does not have any such rolling cipher protections and it seems a stretch to try to argue recording the screen recording is bypassing what those are meant to protect, but it'll be interesting how the court perceives this here.

▲

pwdisswordfishy 20 hours ago | parent [-]

One problem with the law is that it's difficult for the layperson to tell where they stand wrt to the plaintiff's claims against them, and they become, in turn, open to themselves being the "victim" of an inept defense attorney. On the other hand, it's possible that the defendant shopped around before taking on counsel and (allowing for the possibility that this defense was the defendant's own idea and pursued here at his insistence) was told by multiple attorneys that this defense was junk, and then he happened upon an attorney who was willing to handle the procedural aspects so long as the defendant was willing to pay the attorney's fees. Whatever is the case here (there are other possibilities), the defense that the defendant's attorney is arguing is junk, and the defendant doesn't have a legal leg to stand on by trying to pursue it. He's wasting money.

TorrentFreak's analysis here also isn't very good. This isn't a contentious matter where we're seeing two equally well-argued sides. There is no open question here or a novel defense strategy. The DMCA has statutory damages around the anticircumvention parts, even if the circumvention is in regards to enabling use that is not otherwise illegal. That's what makes it insidious. This guy is going to lose if he did use a ripping tool instead of a screen recorder and this is the defense they stick with and the outcome of the case is decided on its merits.

▲

zamadatix 16 hours ago | parent [-]

Yeah I don't pretend to be able to interpret the law accurately or believe even as a layperson that if they did/can be shown to have used downloading tools the other arguments have much of a leg to stand on. Same with much of the stuff around the DMCA itself. The part I'm more waiting on is why the ask to dismiss the circumvention claim was denied:

> As noted above, the Court does not consider and weigh defendants’ opposing evidence when addressing a Rule 12(b)(6) motion to dismiss

I.e. the claim towards the end in circumvention was not dismissed because the counter argument/counter evidence itself was found to be valid/invalid yet (that being there is no evidence such download protection circumvention tools were used). Just that counter evidence is not a reason to dismiss at this stage. That's the part I'm interested in seeing the ultimate ruling on, as it does seem reasonable to say it doesn't matter if it would be against the DMCA if there's no evidence circumvention is actually how the video was actually grabbed.

	▲	pwdisswordfishy 2 hours ago \| parent [-]
		We don't know what the evidence is. The defendant's motion here is asking for the claim to be dismissed even before they've gotten to the point where they present their evidence. The defendant might as well have said, "There is no evidence against me here. Trust me." You don't get to do that.