Hamburg Higher Regional Court: Users of YouTube DL act in "bad faith"

The average YouTube user is not able to easily download an MP3 file of the audio track for music videos streamed via the platform. They cannot simply bypass the "rolling cipher" mechanism used by the Google subsidiary. This is a core statement of the ruling of the Hanseatic Higher Regional Court (OLG) from November 21, which was presented to heise online, with which the Hamburg judges rejected the appeal of the host provider Uberspace in the dispute with the music industry about the website youtube-dl.org and the program library Youtube-DL for MP3 downloads that was once linked to it (Ref.: 5 U 54/23). Accordingly, an average user does not have the knowledge to use "program tools" in the browser such as "Web Developer Settings" in order to carry out a download.

YouTube uses the rolling cipher method primarily to conceal the storage location of a video file. Ultimately, users of the ad-financed basic service are also encouraged to take out a paid premium subscription. Uberspace argued before the OLG that when using Firefox, for example, the user only had to open the video in the browser to download audio content, go to the settings for web developers and filter all data for "audio". It is then necessary to copy and shorten the first URL with "videoplayback" to gain access to the easily saved audio file. Too complicated for the average user, the OLG argues. Rolling Cipher is therefore "an effective measure".

What users of YouTube DL could face

The Hamburg Regional Court first considered the mechanism to be an effective technical protection mechanism in 2017 and maintained this view, which has now been confirmed by the Higher Regional Court, in the YouTube-DL case. According to the higher court, the fact that other programs also allow YouTube videos to be downloaded does not prevent Rolling Cipher from being effective. Uberspace also argued that journalists and activists use solutions based on YouTube-DL to archive newsworthy videos and thus anticipate possible deletion requests from governments, law enforcement agencies and rights holders. According to the OLG, however, "it is not relevant whether and to what extent these devices can also be used for other purposes if they have, in fact, been used primarily to circumvent effective technical measures."

The Hamburg judges also do not want to let YouTube DL users off the hook. The download via such third-party offers "takes place via instructions and in several steps", they write. "From this, the average user must conclude that a protection mechanism is being circumvented." Accordingly, such a user is acting in "bad faith". This means that when downloading MP3s, they are aware or, as a result of gross negligence, unaware that they are not entitled to own the audio file. Downloading could also constitute a copyright infringement. The OLG is rather cryptic about this: The criterion of bad faith also applies to civil law instruments such as injunctive relief, for which "objective disruptive capacity" is regularly sufficient. Uberspace itself could not evade liability by claiming that it was unaware of possible infringements via the page with the link to the tool. It is sufficient "if the defendant has recognized that he is moving within the limits of what is legally permissible".

(mho)