The DMCA Might Be About to Destroy Fair Use

Why It Matters

The case signals that fair‑use rights may be eclipsed by DMCA anti‑circumvention rules, exposing creators to copyright liability even when their use is otherwise lawful.

Key Takeaways

• Court denies dismissal of DMCA anti‑circumvention claim in California
• Fair‑use videos may still violate DMCA if DRM is bypassed
• Plaintiffs allege defendants used tools to decrypt YouTube’s rolling cipher
• Ninth Circuit precedent upholds “effective” control despite public availability
• Creators must assess both fair use and anti‑circumvention liabilities now

Summary

A Northern District of California judge has refused to toss a DMCA anti‑circumvention claim brought by Denver Metro Audits creator Mr. Cordova against the Frauditor Troll Channel, opening the door to liability for fair‑use videos that are downloaded by bypassing YouTube’s DRM.

Cordova alleges the defendants downloaded three of his copyrighted YouTube videos using software that decrypts YouTube’s rolling‑cipher URL signatures, violating 17 U.S.C. § 1201(a). The complaint also cites 12 DMCA takedown notices and counter‑notices, and asserts four causes of action, with the anti‑circumvention claim being the focus. The court found the pleadings sufficient to show that YouTube’s technological measures “effectively control access,” satisfying the statutory elements despite the videos being publicly viewable.

The ruling leans on Ninth Circuit precedent, noting that “effective” does not require an unbreakable barrier, and cites cases such as MDY Industries, UTE v. RAIAA, and UMG v. Kerbanov to support the view that any measure intended to prevent downloading can trigger § 1201 liability. The judge also rejected the defendants’ mischaracterization of the H3H3/Matt Hos fair‑use decision, emphasizing that no anti‑circumvention argument was raised in that case.

If upheld on appeal, the decision could force YouTubers and other creators to obtain explicit permission before downloading even publicly available content for commentary or criticism, or risk DMCA damages despite a valid fair‑use defense. The uncertainty adds a new layer of risk to the “reaction video” ecosystem and may prompt platforms and creators to adopt stricter compliance tools or lobby for legislative clarification.

Original Description

Nearly 30 years after the passing of the Digital Millennium Copyright Act, a Judge is going to hear a novel DMCA “anti-circumvention” claim. If caselaw is really headed in this direction, then creators need to look out. Using another creator’s content will need to be cleared not just for Fair Use but now also for DRM violations, even simple ones. A screen-recording may still be a violation.