Case 3:20-cv-01602-SRU Document 61 Filed 09/30/22 Page 1 of 46
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`UNITED STATES DISTRICT COURT
`DISTRICT OF CONNECTICUT
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`v.
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`YOUT, LLC,
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`Plaintiff,
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`
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`RECORDING INDUSTRY
`ASSOCIATION OF AMERICA, INC., and
`DOE RECORD COMPANIES 1-10,
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`Defendants.
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`
`
`No. 3:20-cv-1602 (SRU)
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`
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`
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`RULING ON DEFENDANT’S MOTION TO DISMISS
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`Yout LLC (“Yout”) filed this four-count suit against The Recording Industry Association
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`of America, Inc. (the “RIAA”) and Doe Record Companies 1-10, seeking a declaratory judgment
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`that Yout’s software, which allows users to download audio, video, and audio/video files from
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`major streaming websites, does not violate section 1201 of the Digital Millennium Copyright Act
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`(“DMCA”). Yout seeks damages in connection with the DMCA, a common law business
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`disparagement claim, and a common law defamation claim for claimed misrepresentations made
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`by the RIAA alleging that Yout infringed unidentified RIAA members’ copyrights.
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`The RIAA moves to dismiss Yout’s complaint for failure to state a claim under Rule
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`12(b)(6), primarily arguing that the facts pled by Yout establish that the software at issue
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`circumvents an effective technological measure in violation of section 1201 as a matter of law.
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`Under the same reasoning, the RIAA avers that it made no misrepresentations about Yout’s
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`software in its circumvention notices. Additionally, the RIAA alleges that Yout does not have a
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`plausible claim for damages under section 512(f) because the DMCA does not penalize a
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`misrepresentation of circumvention.
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`For the reasons that follow, I grant the RIAA’s motion to dismiss Yout’s declaratory
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`judgment claim, section 512(f) claim, and common law defamation claims.
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`

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`Case 3:20-cv-01602-SRU Document 61 Filed 09/30/22 Page 2 of 46
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`I.
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`Background
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`A. Factual Allegations1
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`Plaintiff Yout is a Connecticut limited liability company that has its principal place of
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`business in Hartford, Connecticut. Second Amended Complaint (“SAC”), Doc. No. 45, at 1 ¶ 2.
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`Defendant RIAA is a trade organization incorporated under New York law and
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`headquartered in Washington, D.C. Id. at 1 ¶ 3. The RIAA represents various record companies,
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`including defendants Doe Record Companies 1-10.2 Id. at 2 ¶ 4. Collectively, the RIAA and
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`Doe Record Companies 1-10 are “Defendants.”
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`1. Yout
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`The Internet contains diverse types of content, some of which may be accessed via a
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`unique hyperlink, a uniform resource locator (commonly referred to as “URL” or “web
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`address”), that directs computing devices to content on the Internet. Id. 4 ¶¶ 25-26. Access to
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`some internet content is limited by a paywall or protective technologies such as encryption,
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`content scrambling, or ciphers. Id. at 4 ¶¶ 27-32.
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`Yout created and operates a service by which a user can enter a URL linked to internet
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`content, in specific formats, to create a personal copy of the content on the user’s device. Id. at 5
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`¶ 34. The content accessed by Yout is not behind a paywall, encrypted, or subject to a cipher.
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`Id. at 4 ¶¶ 27-32. It is publicly accessible. Id. at 4 ¶ 33.
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`2. The Yout Service
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`On the domain yout.com, a user may insert a URL and choose to create a local copy of
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`the content in a specific format, such as an MP3 audio file or an MP4 video file. Id. at 5-6 ¶¶ 36-
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`1 The facts are drawn from the second amended complaint, and for purposes of the present motion, I assume them to
`be true and draw all reasonable inferences in Yout’s favor. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
`2 The true names of Doe Record Companies 1-10 are unknown to Yout. See SAC, Doc. No. 45, at 2 ¶ 5 n.2. Yout
`intends to seek leave to amend its complaint once the true names and capacities of the companies are ascertained. Id.
`2
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`Case 3:20-cv-01602-SRU Document 61 Filed 09/30/22 Page 3 of 46
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`39, 43. As a result, a user can listen to or watch the locally-stored copy when he or she is not
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`connected to the internet, such as during a long flight, without visiting the website where the
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`original content resides. Id. at 6 ¶¶ 43-44, 7 ¶ 52. Yout describes its service by explaining that
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`users may “time shift” the content.3 Id. at 7 ¶ 46, 23 ¶ 103, 25 ¶ 121.
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`The content recorded by Yout users is never saved or retained by Yout’s platform or
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`servers. Id. at 5 ¶ 35, 7 ¶ 47.
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`a. YouTube
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`One of the platforms on which a Yout user may obtain a local copy of a file, and the
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`platform at the heart of this dispute, is YouTube. Id. at 8 ¶ 55. YouTube content plays on any
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`HTTP user agent, including a web browser or user-side software, with a Javascript interpreter.4
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`Id. at 8 ¶¶ 57-58, 22-23 ¶¶ 98-99. When a HTTP user agent encounters YouTube’s “signature
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`mechanism,” it reads and interprets the JavaScript program sent by YouTube, derives a
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`“signature value,” and sends that value back to YouTube to initiate the video stream. Id. at 22 ¶
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`98. YouTube content is not encrypted, i.e., under a “digital rights management” regime, nor
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`subject to a “secret key,” like a DVD. Id. at 8 ¶¶ 57-60.
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`Following a series of steps, a user may download a YouTube video and/or audio file
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`directly in the Chrome browser. Id. at 10-18 ¶¶ 63-77. For example, a user may utilize the
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`Chrome browser’s Developer Tools menu to view the YouTube “Request URL,” a lengthy web
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`3 To the extent that Yout analogizes its service to recording a television program on a VHS tape, Yout appears to
`intend to push the boundaries of existing anti-circumvention law by drawing a parallel to well-settled anti-
`infringement law. SAC, Doc. No. 45, at 24 ¶ 107; see Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S.
`417, 446 (1984) (holding that time shifting—making a personal copy of a television program to watch at a later
`time— did not constitute copyright infringement). But this case concerns alleged violations of the DMCA rather
`than copyright infringement, so the analogy-by-implication to anti-infringement law is inapposite.
`4 HyperText Transfer Protocol is a “standard application-level protocol used for exchanging files on the World Wide
`Web. . . . Web browsers are HTTP clients that send file requests to Web servers, which in turn handle the requests
`via an HTTP service.” HTTP, Encyc. Britannica, https://www.britannica.com/technology/HTTP. A “user agent” is
`a “client program that is used to access servers on a network, typically the Internet.” Encyclopedia: User Agent, PC
`Mag., https://www.pcmag.com/encyclopedia/term/user-agent.
`3
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`Case 3:20-cv-01602-SRU Document 61 Filed 09/30/22 Page 4 of 46
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`address containing the text “range=” followed by a sequence of numbers that can be modified to
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`begin at zero and end at a much larger number. Id. at 12-13 ¶¶ 68-70. Using the Chrome
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`browser’s Developer Tools menu, the user may identify the largest file on the YouTube player
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`page, which the Second Amended Complaint implies is the downloadable video file. Id. at 11 ¶
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`67. If the user copies and pastes the YouTube “Request URL” for the video file into a new
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`browser window or tab, then modifies the sequence of numbers in the “Request URL” to begin at
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`zero, then a full-size video (without sound) will appear. Id. In addition to the video, a three-dot
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`menu containing a “Download” option will also appear. Id. at 15 ¶¶ 71-72. By selecting the
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`Download option, the user can save a local copy of the video file (without audio) to his or her
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`computer. Id.
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`The user may also download the audio file for the video by returning to the Developer
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`Tools menu; identifying the file with the shortest “Request URL” among the large files; then
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`repeating the copy, paste, and modify-the-number-sequence process. Id. at 16 ¶ 73. As a result,
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`the user may download, separately, a video file and an audio file. Of note, the Second Amended
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`Complaint provides no instructions regarding how a user can download an audio/video file to
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`save a local copy of a video with its audio.
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`The internet contains numerous articles and videos explaining how to download
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`YouTube video and audio files using the aforementioned procedure. Id. at 17-19 ¶¶ 75-78.
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`b. The Yout Service
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`The Yout platform enables a user to complete the process of manually downloading files
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`directly from YouTube in a “cleaner and easier format” and “fewer steps” by “automat[ing]” the
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`process described above. Id. at 8 ¶ 56, 20 ¶ 79, 21 ¶ 91, 23 ¶ 102.
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`A Yout user enters a link to the video. Id. at 5 ¶ 34. The same as any browser or other
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`user-side software, Yout reads and interprets a JavaScript program sent by YouTube, deriving a
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`signature value, which it then sends back to YouTube to initiate the video stream. Id. at 22 ¶ 98.
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`To record video or audio from a particular YouTube video, Yout utilizes a configured version of
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`the youtube-dl tool with ffmpeg. Id. at 23 ¶ 100 n.5.5
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`The mechanism used by Yout’s platform does not require any password, key, or other
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`secret knowledge to access a YouTube video. Id. at 23 ¶¶ 99-100. Rather, YouTube provides
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`the means of accessing its videos to anyone who requests them. Id. at 23 ¶ 100. Any digital
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`mechanism designed as anti-circumvention technology, such as “digital rights management,” can
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`stop Yout users from recording and saving the content. Id. at 22 ¶ 94.
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`3. The RIAA Notices
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`On October 25, 2019, the RIAA, on behalf of Doe Record Companies 1–10, sent a notice
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`to Google with the intent to cause Google to delist Yout’s software platform from searches.6 Id.
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`at 20 ¶ 83. The October 25, 2019 notice stated:
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`To our knowledge, the URLs provide access to a service (and/or software)
`that circumvents YouTube’s rolling cipher, a technical protection measure,
`that protects our members’ works on YouTube from unauthorized
`copying/downloading.
`
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`5 “[Y]outube-dl is a command-line utility for streaming and downloading user-uploaded videos from various
`websites, including YouTube. . . . [Y]outube-dl stands in place of a Web browser and performs a similar function
`with respect to user-uploaded videos.” Mitchell Stoltz, EFF letter to GitHub on youtube-dl Takedown, ELECTRONIC
`FRONTIER FOUNDATION (Nov. 15, 2020), https://www.eff.org/document/eff-letter-github-youtube-dl-takedown
`[hereinafter “EFF Letter”]. The Court takes judicial notice of the letter, which is expressly referenced in the SAC.
`See SAC, Doc. No. Doc. No. 45, at 23 ¶ 100 n.5; Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)
`(authorizing taking judicial notice of a document incorporated in the complaint by reference)
`6 Yout in its amended complaint alternatively refers to the various notices sent by the RIAA to Google as anti-
`circumvention notices and DMCA notices. Compare SAC, Doc. No. 45, at 20 ¶ 83 (“RIAA, on behalf of Doe
`Record companies 1-10, sent an anti-circumvention notice. . . . “), with id. at 20 ¶ 85 (“RIAA, on behalf of Doe
`Record Companies 1-10, sent a second DMCA notice). Yout’s assertion in its complaint that the RIAA’s notices
`were sent “under 17 U.S.C. § 512(c)(3)” and thus constitute a DMCA notice is a conclusory legal allegation rather
`than a factual allegation and accordingly does not need to be taken as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678-
`79 (2009).
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`5
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`circumvention content: The services provided at the URLs indicated
`circumvent YouTube’s technological protection measures.
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`circumvention mechanism: To our knowledge, the URLs provide access to
`a service (and/or software) that circumvents YouTube’s rolling cipher, a
`technical protection measure, that protects our members’ works on
`YouTube from unauthorized copying/downloading.
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`Id. at 20 ¶ 84. The RIAA sent similarly-worded notices again on October 26, 2019 and June 22,
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`2020.7 See id. at 20-21 ¶¶ 85-88.
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`Relying on the RIAA’s notices, Google delisted Yout and rendered it undiscoverable to
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`Yout’s users. Id. at 20 ¶¶ 83, 85, 87. Users searching for “yout.com” via Google now receive a
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`notice stating that “[i]n response to multiple complaints we received under the US Digital
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`Millennium Copyright Act, we have removed 2 results from this page. If you wish, you may
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`read the DMCA complaints that caused the removals at LumenDatabase.org: [links to
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`Defendants’ DMCA notices].” Id. at 24 ¶ 110. In response, some Yout customers have
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`cancelled their subscriptions to Yout’s services. Id.
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`In addition, Yout’s PayPal account was shut down due to the RIAA’s notices, causing
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`Yout financial and reputational damage. Id. at 24 ¶ 111.
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`B. Procedural History
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`On October 25, 2020, Yout filed this lawsuit. Compl., Doc. No. 1.
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`On December 14, 2020, Yout filed an amended complaint. See Am. Compl., Doc. No. 9.
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`On January 14, 2021, the RIAA moved to dismiss the complaint, doc. no. 28, which Yout
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`opposed, doc. no. 35.
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`On August 5, 2021, I held oral argument on the motion to dismiss. Minute Entry, Doc.
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`No. 42. At that hearing, although the parties’ arguments were directed towards whether
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`7 Yout does not explain why the RIAA sent multiple notices or which of them prompted Google to delist Yout’s
`service.
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`YouTube’s access control mechanisms were effective and whether Yout’s technology
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`circumvented them, the disputes principally focused on the nature of YouTube and Yout’s
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`technologies. See generally Hrg. Tr. (August 5, 2021), Doc. No. 46. I observed that the parties’
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`arguments had “wandered well, well beyond the complaint,” and I invited the parties to consider
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`filing a joint stipulation of facts or engaging in limited discovery in service of a motion for
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`summary judgment. Id. at 48:12-13, 48:4-9. I also encouraged Yout to file an amended
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`complaint detailing its technology with more specificity. Id. at 47:12-48:17. Anticipating a
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`second amended complaint, I granted the RIAA’s motion to dismiss the amended complaint
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`without prejudice and granted Yout leave to amend its amended complaint. Id. at 50:21-23.
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`On September 4, 2021, Yout filed a four-count second amended complaint (the “Second
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`Amended Complaint” or the “instant complaint”). See SAC, Doc. No. 45. Count One seeks a
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`declaratory judgment that Yout’s software does not violate 17 U.S.C. § 1201. Id. at 25-26 ¶¶ 66-
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`127. Count Two alleges that the RIAA violated section 512(f) of the DMCA, 17 U.S.C. §
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`512(f), by knowingly misrepresenting that Yout’s software circumvents YouTube’s “rolling
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`cipher” in take down notices sent to Google. Id. at 27-28 ¶¶ 129-48. Counts Three and Four
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`allege that the RIAA’s take down notices constituted business disparagement and defamation per
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`se. Id. at 29-32 ¶¶ 149–82.
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`The RIAA moved to dismiss the Second Amended Complaint on October 20, 2021, doc.
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`no. 49, which Yout opposed on February 18, 2021, doc. no. 35. The RIAA filed a reply on
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`January 5, 2022. Doc. No. 56. I heard oral argument on August 25, 2022. Doc. No. 59.
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`II.
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`Standard of Review
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`When deciding a motion to dismiss pursuant Federal Rule of Civil Procedure 12(b)(6),
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`the court must accept the material facts alleged in the complaint as true, draw all reasonable
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`inferences in favor of the plaintiffs, and decide whether it is plausible that plaintiffs have a valid
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`claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp. v. Twombly, 550
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`U.S. 544, 555–56 (2007); Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996).
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`Under Twombly, “[f]actual allegations must be enough to raise a right to relief above the
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`speculative level,” and assert a cause of action with enough heft to show entitlement to relief and
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`“enough facts to state a claim to relief that is plausible on its face.” 550 U.S. at 555, 570; see
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`also Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a complaint,
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`they must be supported by factual allegations.”). The plausibility standard set forth in Twombly
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`and Iqbal obligates the plaintiff to “provide the grounds of his entitlement to relief” through
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`more than “labels and conclusions, and a formulaic recitation of the elements of a cause of
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`action.” Twombly, 550 U.S. at 555 (internal quotation marks omitted). Plausibility at the
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`pleading stage is nonetheless distinct from probability, and “a well-pleaded complaint may
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`proceed even if it strikes a savvy judge that actual proof of [the claims] is improbable, and . . .
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`recovery is very remote and unlikely.” Id. at 556 (internal quotation marks omitted).
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`III. Discussion
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`The RIAA moves to dismiss this action for failure to state a claim under Federal Rule of
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`Civil Procedure 12(b)(6). I grant the RIAA’s motion to dismiss the declaratory judgment claim,
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`rendering the subsequent claims meritless.
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`A. Count One (Declaratory Relief Under 17 U.S.C. § 1201)
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`In the first cause of action, Yout seeks a declaratory judgment that its platform does not
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`violate 17 U.S.C. § 1201. SAC, Doc. No. 45, at 25. I begin with an overview of the pertinent
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`statutory scheme, then apply the statute to the case at bar.
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`1. The Applicable Law: The Digital Millennium Copyright Act
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`The Copyright Act provides copyright protection for “original works of authorship fixed
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`in any tangible medium of expression,” including “musical works” and “motion pictures and
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`other audiovisual works.” 17 U.S.C. § 102(a). The Copyright Act endows the owners of
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`copyrighted works the exclusive right to distribute copies of such works and to perform those
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`works via digital audio transmission. See 17 U.S.C. § 106. A copy is a “material object . . . in
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`which a work is fixed by any method now known or later developed, and from which the work
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`can be perceived, reproduced, or otherwise communicated either directly or with the aid of a
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`machine or device.” 17 U.S.C. § 101. An individual commits copyright infringement by
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`violating one or more of the exclusive rights of the copyright owner, as set forth in the Copyright
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`Act. See id. For example, an individual infringes when, inter alia, reproducing, distributing,
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`publicly displaying a protected work, or publicly and digitally playing a sound recording in an
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`unprivileged manner. Id.
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`The Digital Millennium Copyright Act (“DMCA”) was enacted to “strengthen copyright
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`protection in the digital age,” in an era in which Congress expressed concerns about the “ease
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`with which pirates could copy and distribute a copyrightable work in digital form.” Universal
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`City Studios v. Corley, 273 F.3d 429, 435 (2d Cir. 2001). Congress sought to protect the
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`interests of copyright owners and encourage owners to make digital works more readily
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`available. See S. Rep. No. 105-190, at 8 (1998). Congress did so by enacting three prohibitions.
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`In the first, Congress enacted the anti-circumvention provision set forth in subsection
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`1201(a)(1), which provides that “[n]o person shall circumvent a technological measure that
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`effectively controls access to” a copyrighted work. 17 U.S.C. § 1201(a)(1)(A). This so-called
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`“access control” or “effective access” provision “bars one whom technology locks out of a
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`copyrighted work from breaking into it.” 4 Nimmer on Copyright § 12A.03[A][1] (2022)
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`(cleaned up).
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`In the second, Congress enacted the anti-trafficking provision set forth in subsection
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`1201(a)(2), which proscribes “manufactur[ing], import[ing], offer[ing] to the public, provid[ing],
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`or otherwise traffic[king] in any technology, product, service, device, component, or part
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`thereof” that satisfies one of the following criteria:
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`(A) is primarily designed or produced for the purpose of circumventing a
`technological measure that effectively controls access to a work protected
`under this title;
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`(B) has only limited commercially significant purpose or use other than to
`circumvent a technological measure that effectively controls access to a
`work protected under this title; or
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`(C) is marketed by that person or another acting in concert with that
`person with that person’s knowledge for use in circumventing a
`technological measure that effectively controls access to a work protected
`under this title.
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`17 U.S.C. § 1201(a)(2). In other words, the anti-trafficking provision forbids trafficking in
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`services or devices that aid an individual to circumvent a technological measure. David Nimmer,
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`Appreciating Legislative History the Sweet and Sour Spots of the DMCA’s Commentary, 23
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`Cardozo L. Rev. 909, 921 (2002) [hereinafter Nimmer, Legislative History].
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`
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`In the third, Congress adopted the “additional violations” provision, including subsection
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`1201(b), which proscribes “manufactur[ing], import[ing], offer[ing] to the public, provid[ing], or
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`otherwise traffic[king] in any technology, product, service, device, component, or part thereof”
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`that satisfies one of the following criteria:
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`(A) is primarily designed or produced for the purpose of circumventing
`protection afforded by a technological measure that effectively protects a
`right of a copyright owner under this title in a work or a portion thereof;
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`(B) has only limited commercially significant purpose or use other than to
`circumvent protection afforded by a technological measure that effectively
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`protects a right of a copyright owner under this title in a work or a portion
`thereof; or
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`(C) is marketed by that person or another acting in concert with that
`person with that person’s knowledge for use in circumventing protection
`afforded by a technological measure that effectively protects a right of a
`copyright owner under this title in a work or a portion thereof.
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`17 U.S.C. § 1201(b). Whereas subsection 1201(a) focuses on technological measures that
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`“control access” to a copyrighted work, subsection 1201(b) focuses on technological measures
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`that “protect[]” or control “a right of a copyright owner.”8 Because a copyright owner’s rights
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`include an exclusive right to reproduce a copyrighted work and to distribute copies by sale or
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`otherwise, 17 U.S.C. § 106, subsection 1201(b) is often deemed the “copy-control” provision.
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`Section 1201(c)(3) further provides that “[n]othing in this section shall affect rights,
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`remedies, limitations, or defenses to copyright infringement, including fair use, under this title.”
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`17 U.S.C. § 1201(c)(3).
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`2. Declaratory Relief Under the Anti-Circumvention Provision, 17 U.S.C. § 1201(a)(1)
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`To obtain a declaratory judgment that Yout does not violate 17 U.S.C. § 1201(a)(1), the
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`anti-circumvention provision of the DMCA, Yout must plausibly plead that the copyrighted
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`works are not protected by a “technological measure” that “effectively controls access” to the
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`works or that Yout does not circumvent an effective technological measure to access the works.
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`17 U.S.C. § 1201(a).
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`The RIAA argues that Yout fails to state a plausible claim for a declaratory judgment that
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`its service does not violate the anti-circumvention provision of the DMCA for three reasons: (1)
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`common sense and Yout’s allegations establish that YouTube employs technological measures
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`8 Professor Nimmer explains that the anti-circumvention provision “protects the sanctity of the copyright owner’s
`‘castle’” whereas the copy-control provision governs “violations of the seigneur’s edict, once access to his
`stronghold has been freely granted.” Nimmer, Legislative History, at 948-49.
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`that, “in the ordinary course of [YouTube’s] operation,” require “the application of information,”
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`“a process,” or “a treatment” authorized by the copyright owner to access the digital file copies
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`of copyrighted works; (2) Yout “circumvents” YouTube’s technological measures by “avoiding”
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`or “bypassing” them; and (3) Yout does not and cannot allege that it acts “with the authority of”
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`copyright owners. See generally Docs. No. 49 and 49-1.
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`There is no dispute that Yout constitutes “technology” within the meaning of the DCMA,
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`but every other aspect of the analysis is contested. I address each issue seriatim and conclude
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`that Yout has not plausibly pled that YouTube lacks a technological measure; that Yout has not
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`plausibly pled that the YouTube technological measure is not effective; that Yout has not
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`plausibly pled that Yout has not circumvented the YouTube technological measure; and that
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`Yout has not plausibly pled that Yout has not violated section 1201(a) of the DMCA.
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`a. Yout’s allegations suggest that YouTube has a “technological measure” that
`controls access to copyrighted works, within the meaning of 17 U.S.C. § 1201(a).
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`Yout attempts to frame the core dispute in connection with the RIAA’s motion to dismiss
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`as whether YouTube has a “technological measure” that “controls access” to a copyrighted work
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`in the first place.9 Yout argues that YouTube has no technological measure to circumvent
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`because YouTube offers “publicly available means” to download files “freely given in the
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`ordinary course of users streaming videos via a web browser.” Opp’n, Doc. No. 55, at 5 (citing
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`SAC, Doc. No. 45, at 23 ¶ 102); see also SAC, Doc. No. 45, at 22 ¶¶ 96-101. Yout’s step-by-
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`step instructions imply that any layperson can access the files Yout’s software downloads, access
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`that Yout merely “automates” to “accomplish the same result.” Id. at 10-18 ¶¶ 62-77, 23 ¶ 102.
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`9 The parties interchangeably use the phrase “technological measure,” “technical protection measure,” and “TPM” to
`describe this concept.
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`Case 3:20-cv-01602-SRU Document 61 Filed 09/30/22 Page 13 of 46
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`For its part, the RIAA counters that YouTube has a technological measure because, inter
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`alia, “[t]here is no download button or other feature [on a YouTube watch page] that allows
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`users to copy the underlying digital files,” that consumers would not need Yout if YouTube’s
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`files were freely accessible, and that Yout’s “convoluted” step-by-step instructions rebut its
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`claim of “freely given” access and suggest that, in the “ordinary course,” an “ordinary” YouTube
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`user does not engage in the enumerated procedure. Mem. of Law, Doc. No. 49-1, at 9.
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`To determine whether Yout plausibly pleads that its technology does not violate the
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`DMCA because YouTube has no technological measure for Yout to circumvent, I begin by
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`defining “technological measure.” Applying that definition to the allegations in the Second
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`Amended Complaint, it appears that YouTube does have a technological measure in place.
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`Accordingly, I conclude that Yout does not plausibly allege that YouTube lacks a technological
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`measure.
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`i. A “technological measure,” within the meaning of 17 U.S.C. § 1201(a), is an
`“access control.”
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`To decide the contested issue of whether YouTube has a “technological measure,” within
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`the meaning of section 1201(a), I must begin by defining a technological measure. The statute
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`itself does not expressly define the phrase, the parties do not expressly propose their own
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`definition, and no judicial decision that I have found appears to define technological measure
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`separately from an effective technological measure. By necessity, I linger on this first step of the
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`analysis.
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`In the Second Amended Complaint, Yout seems to define “technological measure” as a
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`measure “put in place by a copyright owner to control access to a copyrighted work.” SAC, Doc.
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`No. 45, at 21 ¶ 89. At oral argument Yout’s counsel repeatedly seemed to define “controls
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`access” by asserting that a technological measure “prevents” access to a protected work. Hrg.
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`Case 3:20-cv-01602-SRU Document 61 Filed 09/30/22 Page 14 of 46
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`Tr. (Aug. 25, 2022), Doc. No. 60, at 48:9. The RIAA appears to define “technological measure”
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`as a measure that “requires the application of information, or a process or a treatment” to gain
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`access to a copyrighted sound or video recording “in the ordinary course of [the technological
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`measure’s] operation,” the same way it defines an effective technological measure. Reply, Doc.
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`No. 56, at 6 (quoting 17 U.S.C. § 1201(a)(3)(B)). Looking to the statutory text and precedent, I
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`hold that a technological measure, within the meaning of subsection 1201(a), is a technology that
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`“controls access” to a work protected by copyright.
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`First, I begin with the text of the statute. Hawaii v. Office of Hawaiian Affairs, 556 U.S.
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`163, 173 (2009). Section 1201(a) provides that “[n]o person shall circumvent a technological
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`measure that effectively controls access to [a copyrighted work].” 17 U.S.C. § 1201(a).
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`Although the statute defines the phrase “to ‘circumvent’ a technological measure” and further
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`defines “a technological measure [that] ‘effectively controls access to a work’,” the statute does
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`not likewise define the phrase “technological measure.” See 17 U.S.C. § 1201(a)(3). That said,
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`section 1201(a) appears to speak for itself that a “technological measure,” within the meaning of
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`section 1201(a), is a technology that “controls access” to a copyrighted work.
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`Second, courts appear to have embraced a literal definition of the phrase. See, e.g.,
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`Universal City Studios, Inc. v. Corley, 273 F.3d 429, 440-41 (2d Cir. 2001) (“the focus of
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`subsection 1201(a)(2) is circumvention of technologies designed to prevent access to a work”)
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`(emphasis added); Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 318 (S.D.N.Y.
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`2000) (“defendants’ construction, if adopted, would limit the application of the statute to access
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`control measures that thwart circumvention, but withhold protection for those measures that can
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`be circumvented”) (emphasis added); accord Disney Enterprises, Inc. v. VidAngel, Inc., 869 F.3d
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`848, 864 (9th Cir. 2017) (“§ 1201(a) governs TPMs that control access to copyrighted works”)
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`Case 3:20-cv-01602-SRU Document 61 Filed 09/30/22 Page 15 of 46
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`(emphasis added); Chamberlain Grp., Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1202 n.17
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`(Fed. Cir. 2004) (“a technological measure controlling access to a copyrighted work”) (emphasis
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`added); Prudent Tr. Co. Ltd. v. Touray, 2014 WL 12575854, at *5 (C.D. Cal. Nov. 25, 2014)
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`(“technological measures that allowed [the plaintiff] access to control its copyright-protected
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`work”).10
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`Employing a literal “access control” definition begs an obvious question: How restrictive
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`must an access control be to constitute a technological measure? In an oft-repeated phrase,
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`Congress once described circumvention as “the electronic equivalent of breaking into a locked
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`room in order to obtain a copy of a book.” Reimerdes, 111 F. Supp. 2d at 316 (S.D.N.Y. 2000)
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`(quoting H.R. Rep. No. 105–551, at 17 (1998)). The Second Circuit has implied that section
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`1201(a) governs “technologies designed to prevent access to a work,” characterizing
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`technological measures as “digital walls,” including encryption codes or password protections,
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`and likening the content scrambling system at issue in Corley to a “lock on a homeowner’s door,
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`a combination of a safe, or a security device attached to a store’s products.” Corley, 273 F.3d at
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`441, 443, 453 (emphasis mine).
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`Judicial rulings regarding anti-circumvention, including Corley, often address the two
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`technological measures expressly provided for in the DMCA: “scrambled” and “encrypted”
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`works. E.g., id. at 453 (holding that Content Scramble System (“CSS”) encryption, a technology
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`protecting motion pictures on DVDs through an algorithm scheme configured by a set of “keys,”
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`constituted an access control); accord CoxCom, Inc. v. Chaffee, 536 F.3d 101, 110 (1st Cir.
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`2008) (determining that a cable company’s pay-per-view system, which scrambled pay-per-view
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`programming unless a subscriber purchased the content, constituted an access control). But the
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`10 In VidAngel, the Ninth Circuit rejected the notion that a technological measure “cannot serve as both an access
`control and a use control” while holding th