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If the act of watching a YouTube video creates a temporary download in my internet cache, why is it illegal to use an app that intercepts the YouTube API to download music videos to listen to later when I don't have internet?

When people buy a CD or mp3, they are allowed to listen to it as much as they want, because the royalties have already been paid. YouTube pays royalties via ads, so by this logic, the stream I listen to is legal because the royalties have already been paid by YouTube.

But, what constitutes a stream? I can have a YouTube music video open in my browser, disconnect from the internet once it loads, and listen to it over and over provided I don't refresh the page. In that case, why is it illegal for me to download it to my computer to listen to later?

If anyone can provide case law or something to that effect, I'd really appreciate it. I'm in the USA, so I'm looking for USA-specific copyright law. And, to clarify, I'm not asking about YouTube's TOS, but the overall legality of downloading music from YouTube in general.

feetwet
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MelodySkirata
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    I think the confusion comes from your idea that "the royalties have already been paid". Royalties are essentially a license fee, and although both the copyright owner's cut of a CD sale and the copyright owner's share of ad revenue can be described as royalties, they are for different licenses which grant different rights to the licensee. – kaya3 Mar 26 '23 at 07:05
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    Just a small anecdote, in Switzerland it is completely legal. Almost any sort of pirating is allowed for private use. The current laws are from a time when nothing like that existed and are very liberal when it comes to private use. Music companies have lobbied several times to modernize the law, but Switzerland being a democracy means it got shot down during public vote :). There even was a case where it was ruled legal to own and use a Dreambox - a device that among other things was capable of decrypting a pay-TV channel for free - to organize movie nights with friends. – Yanick Salzmann Mar 26 '23 at 08:47
  • Don't forget that apart from all the licensing, royalty, and copyright considerations, using a third-party tool to intercept/extract application data in violation of the ToS may also run afoul of anti-circumvention laws. – A C Mar 26 '23 at 10:27
  • You write: " I can have a YouTube music video open in my browser, disconnect from the internet once it loads, and listen to it over and over provided I don't refresh the page. " While this is probably technically possible, I don't think the youtube TOS would allow you to do that. It would be treated the same way as downloading for later use. – quarague Mar 26 '23 at 12:23
  • This reminds me of a legal case I studied at school, in which a merchant was selling 100,000 T-shirts with a specific branding in France, with authorized licensing from the owning company. When they realised the T-shirts were selling so well, they decided to sell more than the allotted 100k. Upon doing so, the company sued them for counterfeit because their license was no longer valid, and as such they were selling a product they are not legally allowed to sell, even if it's the genuine product. Same thing with video games you purchase: you actually purchase the license to consume it. – Clockwork Mar 26 '23 at 14:43
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    Peeve about the question title: questions should not state a controversial premise that's actually the subject matter of the question ("why is X illegal?") but intead make it explicitly part of the question ("what laws might one be breaking by doing X?") – R.. GitHub STOP HELPING ICE Mar 26 '23 at 15:34
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    @R..GitHubSTOPHELPINGICE I agree - I suggested a new title. – preferred_anon Mar 26 '23 at 20:10
  • You didn't mention screen | audio capture as opposed to downloading the video, which would seem similar to any recording device, such as a DVR. Another issue is third parties that have downloaded then uploaded other peoples videos, in some cases with some comment at the end so they can call it a review. – rcgldr Mar 27 '23 at 02:11
  • As for recording devices, Sony won a lawsuit about using their Beta tape machines to record video|audio from broadcast. In a later lawsuit brought by Sony against the usage of DVRs, the judge pointed out that Sony's prior Beta tape lawsuit set a precedent, making such usage (record now, watch later, including watching multiple times) legal. There have been some 2K and 4K televisions that included built in DVR's, essentially video and audio capture. I don't know if any of these are still made, since standalone DVRs can be used instead. – rcgldr Mar 27 '23 at 02:22

3 Answers3

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Although you aren't interested in the TOS, you should be. You are not allowed to make any copy of other people's stuff without permission. The TOS is how you get permission. First, the author uploads his material to You Tube, because he has an account and the TOS associated with the account specifies the license that he grants to You Tube and the world – same thing with Stack Exchange. The TOS says (roughly) "when you upload stuff, you give permission for others to access your stuff using the You Tube interface". Content-consumers likewise are allowed to stream content using their interface, but not generally download. (The license terms changes over time – previously there were more license types). Specifically,

You are not allowed to:

access, reproduce, download, distribute, transmit, broadcast, display, sell, license, alter, modify or otherwise use any part of the Service or any Content except: (a) as expressly authorized by the Service; or (b) with prior written permission from YouTube and, if applicable, the respective rights holders;

and they don't expressly authorize ordinary download, you have to use their interface.

You might also directly contact the author of the work in question and negotiate a deal where you can directly acquire a license from the rights-owner. But if you want to access the material via You Tube, you have to do it in a way that is permitted, and You Tube says that you're not permitted to download. Any "copying without permission" is infringement.

user6726
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  • Comments have been moved to chat; please do not continue the discussion here. Before posting a comment below this one, please review the purposes of comments. Comments that do not request clarification or suggest improvements usually belong as an answer, on [meta], or in [chat]. Comments continuing discussion may be removed. – Dale M Mar 27 '23 at 10:49
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Copying is a necessary and pervasive part of typical internet usage. Visiting any website requires, not only that it is temporarily copied and saved onto your hard drive, but also that every intermediate server through which the content is transmitted to you has a copy, and also that a copy can be displayed on the physical screen you use to view the media. This was the source of a lot of controversy in the early internet era, I recommend reading Chapter 3 of Lawrence Lessig's Free Culture if you're interested in the history.

Since the default is "any copying is illegal", I will answer the contrapositive "why isn't using my browser to visit YouTube illegal?". I claim that the Terms of Service of YouTube are irrelevant for the purposes of this question. I think there are essentially two defenses for using the website/app in its usual fashion, which do not apply to tools for downloading permanent copies.

Both rest on the distinction that the implied copying is (1) temporary, (2) non-commercial, (3) transient, (4) the minimum necessary to carry out the relevant technical aim (i.e. transmitting video content through the internet).

  • In the US I claim that implicit copying would definitely be considered a fair use, while making a personal copy for private use could but probably wouldn't, and making a personal copy to distribute would definitely not. See https://law.stackexchange.com/a/3589/36772 for details.
  • In the EU There are explicit exemptions in the Copyright Directive which permit copying under these circumstances. See https://law.stackexchange.com/a/4858/36772 for details.

One commenter mentions anti-circumvention law as in the DMCA. This might be relevant, but personally I doubt it, as YouTube does not use any kind of "digital lock" (i.e. DRM) that I'm aware of. Access to the raw blob is obfuscated, but not directly locked.

A final note is that in some jurisdictions you are allowed to make "Home copies" for personal use, or for other specific demarcated purposes. You can find some references to specific jurisdictions on the Wikipedia article for Private copying levy (which is a common form of tax used to remunerate copyright holders for private copying).

youtube-dl and Invidious

There are two relevant software projects that touch on this area.

  • Invidious is an open-source front-end for YouTube. A certain amount of copying is incidental in the provision of such a service, but as far as I know it is considered likely to be legal. The developers certainly think so.
  • youtube-dl is an open-source software project enabling users to download any youtube video they like. It is the user's responsibility to ensure that they are using youtube-dl under proper license of the downloaded material.

There have been many similar projects: Vanced, HookTube, Youtube2Peertube, ... which were intimidated into shutting down, either due to real or bogus legal threats. You may want to look into them if you want to know the details.

preferred_anon
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    Related to digital locks and youtube-dl: https://www.eff.org/deeplinks/2020/11/github-reinstates-youtube-dl-after-riaas-abuse-dmca, https://github.blog/2020-11-16-standing-up-for-developers-youtube-dl-is-back/, https://github.com/github/dmca/blob/master/2020/10/2020-10-23-RIAA.md, https://github.com/github/dmca/blob/master/2020/11/2020-11-16-RIAA-reversal-effletter.pdf – Solomon Ucko Mar 27 '23 at 07:03
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    "Access to the raw blob is obfuscated, but not directly locked." <- doesn't that count as a lock? – user253751 Mar 27 '23 at 08:39
  • Any source on Newpipe being shut down? Looks very alive to me. – Ruther Rendommeleigh Mar 27 '23 at 08:58
  • @user253751 I doubt it. I don't know the exact details, but I believe the url is literally in the page somewhere, just not in a straightforward-to-find way. Naively using inspect-element doesn't reveal a visitable URL, but I still think youtube-dl works by just scraping the page. It certainly doesn't do any decryption, for example. I'm sure some obfuscation could count as a lock, but I don't think this does. – preferred_anon Mar 27 '23 at 09:50
  • @RutherRendommeleigh My mistake. Have corrected. – preferred_anon Mar 27 '23 at 09:51
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    @preferred_anon DMCA uses the intentionally broad phrase "technological protection measure" and it would not surprise me in the slightest if courts would conclude that "right click -> view source" is bypassing a technological protection measure. – user253751 Mar 27 '23 at 09:54
  • @user253751 Indeed, anything can happen if you find a judge who is sufficiently technically illiterate. I don't have a source for my claim that anti-circumvention doesn't apply here, it's just my best guess. I imagine YouTube agrees, or they would have sued already. It's not like youtube-dl is off their radar. – preferred_anon Mar 27 '23 at 10:05
  • @preferred_anon or they prefer it to remain ambiguous and scary rather than risking a ruling that's okay, or they just expect it to cost more than they'll gain. youtube-dl was taken down multiple times and is now defunct. – user253751 Mar 27 '23 at 10:09
  • @user253751 Yes. Speculation aside - youtube-dl seems perfectly active (last commit 2 weeks ago). – preferred_anon Mar 27 '23 at 10:14
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    @preferred_anon it fails in many cases. yt-dlp is recommended instead. – user253751 Mar 27 '23 at 10:14
  • It doesn't require that it's saved to your hard-drive... It has to be stored in RAM. Whilst that amounts to much the same, and I'd imagine most browsers are caching video chunks to disk, let's be correct about these things. – ScottishTapWater Mar 27 '23 at 11:39
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It is not illegal

There no law against downloading any video from YouTube. YouTube does, however has a policy and mechanisms against that because law allows them to do so. It is their website, after all.

The saved track is pirated

The license YouTube allows you to listen to the track only from their website or apps, even if it cached on your hard drive. Same goes on Spotify, Netflix... If you save the track outside their allowed use, then you are breaking the contract and you have an unlicensed copy of the track.

Make your own streaming service to get around this

If you are not interested in following YouTube terms of service, you don't have to follow them by never accessing the website or apps. You can get around the issue by creating an app that does what you want and set your own content policies. If the app and its policies are so good, people will rather posting their content to your platform, rather than theirs.

Gabriel Diego
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  • PS, by rereading I noticed that the first two points seem to be incongruent, so let me clarify: It is legal to download YouTube content, you already do that to cache the content, but keeping copyrighted material without a license is the illegal. You will break this license once you play the content using your own player. – Gabriel Diego Mar 26 '23 at 02:19
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    If you wish to clarify your answer, you should put that clarification in the answer, rather than in a comment. – Acccumulation Mar 26 '23 at 03:38
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    I see. Do you have a link to case law or something like that I could look at? I believe you, but I'd like to look at the laws also – MelodySkirata Mar 26 '23 at 03:42
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    Copyright law is a law. – DonQuiKong Mar 26 '23 at 10:21
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    If someone gives me a youtube link, and I pass it to the youtube-dl program, where does the ToS come in to play? All I've done is connect to a public HTTP server and saved what it gives me. – Aaron F Mar 26 '23 at 19:47
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    I think this answer does not convey much useful information. There is a law against "downloading any video from YouTube". YouTube is not like Netflix or Spotify, because they employ DRM (so anti-circumvention applies), which YouTube doesn't. Saving the track outside of their allowed use is not illegal because it breaks your contract with YouTube - if the ToS were relevant, you would need to sign a contract to visit any website. And the point about making your own streaming service is absurd advice, even if it was on-topic. – preferred_anon Mar 26 '23 at 20:04
  • @AaronF the TOS comes into play where it says you aren't allowed to do that. – OrangeDog Mar 27 '23 at 07:46
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    @OrangeDog TOSes have been found unenforceable in many cases - you aren't automatically obliged to do whatever some billionaire wants. (You're only obliged once they bribe enough politicians, to write a law saying they can put something in the TOS) – user253751 Mar 27 '23 at 08:41
  • @AaronF surely the same question applies to anyone who deliberately does not click on the ToS when viewing the site (that's most people) – user253751 Mar 27 '23 at 09:55