Archivists’ Victory over Overbroad Copyright Claim

A joint statement from Human Rights Watch, Mnemonic, and WITNESS, with lead authoring by Deborah Brown, Senior Researcher and Advocate on Digital Rights, and Gabriela Ivens, Head of Open Source Research, at Human Rights Watch.

A decision by GitHub, a leading software development platform, to reinstate a popular free software tool for downloading videos, means that human rights groups will be able to continue to use the software without interruption to preserve documentation of human rights abuses, Human Rights Watch, Mnemonic, and WITNESS said today. GitHub had removed the code for the software, youtube-dl, from its platform in response to a request by the Recording Industry Association of America Inc (RIAA).

youtube-dl is one of the primary tools used to download videos from hundreds of websites, including YouTube, Facebook, and Twitter. The tool is maintained and updated on GitHub. Videos posted online are essential for human rights investigations and research to expose human rights violations and provide evidence in legal proceedings to hold human rights violators accountable, including in international tribunals.

GitHub did the right thing in reinstating youtube-dl, following a spurious copyright claim, the organizations said. It is a vital tool for preserving and archiving documentation of human rights abuses to preserve evidence that can bring the abusers to justice.

On October 23, the Recording Industry Association of America submitted a Digital Millennium Copyright Act request to GitHub to remove all public code repositories of youtube-dl, which essentially constitute the code behind the tool. This request would have left the youtube-dl developers without a key platform to coordinate with other developers working on the open-source tool. These requests are legal notices sent to online service providers that ask them to remove material that allegedly infringes on copyright.

Microsoft-owned GitHub complied with the request a few days later. On November 16, GitHub reversed course and reinstated youtube-dl to its platform, saying that it did so after it “received additional information about the project” that enabled it to reverse its decision.

While there is a possibility that youtube-dl might be used to download copyrighted material like Taylor Swift’s Shake it Off video and other videos mentioned in the request, the Recording Industry Association of America did not provide evidence that this had happened. Instead, it contended that youtube-dl should be removed for use by anyone for any purpose.

During the weeks youtube-dl was removed from GitHub’s platform, the Electronic Frontier Foundation (EFF) and youtube-dl provided GitHub with information on the legitimate uses of the tool, including “changing playback speeds for accessibility, preserving evidence in the fight for human rights, aiding journalists in fact-checking, and downloading Creative Commons-licensed or public domain videos.”

The code behind youtube-dl is used by dozens of other archival tools and browser plug-ins. Given how important it is across platforms, the attempted removal of youtube-dl from GitHub threatened to do serious damage, the groups said. GitHub is used by the small group of programmers and external contributors behind youtube-dl to help manage the constant updates needed to keep up with the way social media platforms and other websites update their services.

As a recent Human Right Watch report “Video Unavailable” notes, the ability to download, archive, and preserve videos documenting human rights abuses is crucial for human rights work because that potential evidence can be removed by the uploader or by the platform where it was published at any moment, especially as commercial platforms like YouTube prohibit graphic violence on their platforms.

The removal of this tool would seriously hamper a key form of evidence gathering. Social media platforms themselves have acknowledged the problem of losing human rights documentation when they remove content and have encouraged groups to archive videos.

“We use youtube-dl to archive and preserve videos related to human rights violations at the highest resolution available,” said Nicole Martin, associate director of archives and digital systems at Human Rights Watch. “Losing the ability to download and preserve content would be disastrous to efforts to hold abusers accountable.”

The archival and human rights group Mnemonic has used youtube-dl to preserve over two million videos from Sudan, Syria, and Yemen. In its own evaluations it has found a substantial portion of these videos would most likely disappear without the ability to archive them.

“Mnemonic’s most recent review of our archived videos from the Syrian conflict revealed that 23 percent of videos in collections of verified human rights documentation are no longer available on YouTube,” said Dia Kayyali, associate advocacy director at Mnemonic. “Without youtube-dl, that content could have been lost forever.”

People rely on social media platforms as the primary way they access the internet and share information throughout the world. “youtube-dl is essential in the accessible and transparent workflows we employ with our local partners to collect and preserve documentation for human rights advocacy and legal evidence,” said Yvonne Ng, archives program manager at WITNESS.

This free tool enables people to retrieve information and have it accessible offline, especially in low-bandwidth situations or when the internet has been shut down, the groups said.

The Recording Industry Association of America’s request was based on Section 1201 of the Digital Millennium Copyright Act, also known as the “anti-circumvention” rule, which prohibits bypassing, removing, or revealing defects in “technical protection measures” that control not just use but also access to copyrighted works. These protection measures control activities as disparate as who can fix cars and tractors, who can audit the security of medical implants, and who can refill a printer cartridge.

The rule has been applied in ways that hamper public interest archiving by libraries and other institutions, since copyright holders allege that these activities constitute circumventing the technical protection measures to infringe on copyright. The EFF has argued, and GitHub agreed, that its use in the youtube-dl case was a misapplication of the law.

Human Rights Watch contacted the Recording Industry Association of America, GitHub, and youtube-dl for comment. The association did not respond, and youtube-dl declined to comment on the events due to the ongoing legal case. However, youtube-dl did note the importance of GitHub as a platform and explained the origins of its tool. A spokesperson from GitHub said in a November 12 email to Human Rights Watch, prior to the tool’s reinstatement, that “GitHub believes that, as applied to source code, Section 1201 is outdated and too broad, often sweeping up code that has otherwise lawful purposes, but we are nonetheless required to comply with the law.”

The association’s attempt to use Section 1201 this way raises concerns about future efforts to misuse the law to restrict access to the internet’s archival tools that human rights organizations rely on, the organizations said.

GitHub announced new measures to address similar situations in the future. It said it plans to change how it evaluates requests under Section 1201, and to establish and donate US$1 million to a developer defense fund to support open-source developers on GitHub from unwarranted Section 1201 takedown claims. It also said it is advocating changing the copyright law’s anti-circumvention provisions.

This case points to a larger problem of flaws in the Digital Millennium Copyright Act, the organizations said. The law gives copyright holders very broad powers to impede the use of tools even for legal applications that are in the public interest, like preserving evidence of human rights crimes.

Elsewhere, Human Rights Watch has also warned that abusive takedowns for alleged copyright violations under other Digital Millennium Copyright Act provisions can become a powerful tool for silencing criticism and commentary online.

The provisions in the copyright law are outdated and overbroad, the organizations said. Policymakers need to ensure copyright laws don’t improperly restrict rights or eliminate key sources of evidence to hold rights abusers and war criminals accountable.

This work was originally published by WITNESS and is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.