If you can circumvent the technological measure it isn't effectively controlling access, is it?
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According to the law, this is incorrect. A technological measure to control access is effective if, "in the normal course of its operation" (that is, when it is not being bypassed), it protects the rights of the copyright owner to some piece of work. The most trivial thing -- JavaScript code that disables right clicks -- can be effective under this standard. And getting around it would still be a crime.
The javascript example shows the problem of this definition.
What if I have disabled javascript or use a browser without javascript?
I wouldn't even know that some kind of protection exists.
What if I distribute youtube-dl behind some trvially bypassed JavaScript protections and some passwords and "you're not authorised" messages a la CFAA, then have an "enemy" spread knowledge of how to bypass all this on some shady forums? Who sues me? And how many felonies do they commit in building their case against me?
In other words, there's a catch-22 in how strict we are about the definition of effective protection. 99% of the public won't even open their browser tools so I guess if youtube-dl is put behind some very generously documented JavaScript that is easily bypassed then it is not actually out in public because it is effectively DRM protected, right?
More importantly, if a work is distributed under a "protection" mechanism that is regularly bypassed by browsers, does that mean that browsers are circumvention tools too?
Browsers don't bypass the protection mechanism, they implement it. Certain YouTube videos are licensed only for streaming playback by the YouTube site or app. There's JavaScript on the YouTube site that descrambles the URL of the content. Going to the YouTube site and playing back a video from there is fine. However, if you were to write, say, a Node version of youtube-dl that downloads and 'eval's the descrambling code from the site, and use that to download a video for uses not licensed or authorized by the rightsholder, that too would be circumvention under the DMCA and thus illegal.
There's really is no way around this. YouTube videos are protected by technological copyright restrictions. ANY attempt to get around those restrictions is a crime.
Even if this were not the case, you would be committing copyright infringement by downloading the videos for unauthorized use anyway. The DMCA just gives legal teeth to technological attempts to prevent casual infringement.
> Browsers don't bypass the protection mechanism, they implement it.
This is incorrect. The website implements the protection mechanism, browsers execute it, just as youtube-dl. The implementor is the person writing the code, not the system executing it.
> Certain YouTube videos are licensed only for streaming playback by the YouTube site or app.
The meaning of this sentence is unclear. What does it mean for playback to only be allowed by the (web)site? Websites alone cannot do anything -- they require a web agent which fetches and executes them. Firefox, Chrome, Safari and youtube-dl are examples of such agents.
> Even if this were not the case, you would be committing copyright infringement by downloading the videos for unauthorized use anyway.
Luckily for me, I am in a jurisdiction where this is not the case and where DMCA plays no role.
That’s like suggesting a locked door that gets picked isn’t really breaking and entering.
It's more like saying owning lockpicking tools automatically makes you a thief. (Which is the law in some states, like Illinois).
I doubt the laws against breaking in talk about effectivly locking the door. It's just entering without permission.
But the "lock" in this case doesn't exist.