27

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.

9
  • 3
    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, 2023 at 7:05
  • 7
    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. Mar 26, 2023 at 8:47
  • 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, 2023 at 10:27
  • 2
    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?") Mar 26, 2023 at 15:34
  • 1
    @R..GitHubSTOPHELPINGICE I agree - I suggested a new title. Mar 26, 2023 at 20:10

3 Answers 3

26

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.

1
  • 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 Law Meta, or in Law Chat. Comments continuing discussion may be removed.
    – Dale M
    Mar 27, 2023 at 10:49
9

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.

11
2

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.

9
  • 5
    If you wish to clarify your answer, you should put that clarification in the answer, rather than in a comment. Mar 26, 2023 at 3:38
  • 4
    Copyright law is a law.
    – DonQuiKong
    Mar 26, 2023 at 10:21
  • 2
    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, 2023 at 19:47
  • 4
    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. Mar 26, 2023 at 20:04
  • 2
    @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, 2023 at 8:41

Not the answer you're looking for? Browse other questions tagged .