Earlier this week, GitHub took down the repository for the youtube-dl project. This came in response to a request from the RIAA—the recording industry’s lobbying and harassment body. youtube-dl is a tool for downloading videos. The RIAA argued that this violates the anticircumvention protections of the Digital Millennium Copyright Act (DMCA). While GitHub taking down the repository and its forks is true to the principle of minimizing corporate risk, it’s the wrong choice.

Microsoft—currently the world’s second-most valuable company with a market capitalization of $1.64 trillion—owns GitHub. If anyone is in a position to fight back on this, it’s Microsoft. Microsoft’s lawyers should have a one word answer to the RIAA’s request: “no”. (full disclosure: I own a small number of shares of Microsoft)

The procedural argument

The first reason to tell the RIAA where to stick it is procedural. The RIAA isn’t arguing that youtube-dl is infringing its copyrights or circumventing its protections. It is arguing that youtube-dl infringes YouTube’s protections. So even if it is, that’s YouTube’s problem, not the RIAA’s.

The factual argument

I have some sympathy for the anticircumvention argument. I’m not familiar with the specifics of how youtube-dl works, but it’s at least possible that youtube-dl circumvents YouTube’s copy protection. This would be a reasonable basis for YouTube to take action. Again, YouTube, not the RIAA.

I have less sympathy for the infringement argument. youtube-dl doesn’t induce infringement more than a web browser or screen recorder does. There are a variety of uses for youtube-dl that are not infringing. Foremost is the fact that some YouTube videos are under a license that explicitly allows sharing and remixing. Archivers use it to archive content. Some people who have time-variable Internet billing use it to download videos overnight.

So, yes, youtube-dl can be used to infringe the RIAA’s copyrights. It can also be used for non-infringing purposes. The code itself does not infringe. There’s nothing about it that gives the RIAA a justification to take it down.

youtube-dl isn’t the whole story

youtube-dl provides a focal point, but there’s more to it. Copyright law is now used to suppress instead of promote creative works. The DMCA, in particular, favors the large rightsholders over smaller developers and creators. It essentially forces sites to act on a “guilty until proven innocent” model. Companies in a position to push back have an obligation to do so. Microsoft has become a supporter of open source, now it’s time to show they mean it.

We should also consider the risks of consolidation. git is a decentralized system. GitHub has essentially centralized it. Sure, many competitors exist, but GitHub has become the default place to host open source code projects. The fact that GitHub’s code is proprietary is immaterial to this point. A FOSS service would pose the same risk if it became the centralized service.

I saw a quote on this discussion (which I can’t find now) that said “code is free, infrastructure is not.” And while projects self-hosting their code repository, issue tracker, etc may be philosophically appealing, that’s not realistic. Software-as-a-Service has lowered the barrier for starting projects, which is a good thing. But it doesn’t come without risk, which we are now seeing.

I don’t know what the right answer is for this. I know the answer won’t be easy. But both this specific case and the general issues they highlight are important for us to think about.