4th of July 2012Situation update
First of all I have to clarify some false reports that appeared in the news: There was never made an attempt to hide my identity. My name is Philip Matesanz. I am 21 years old and a student for applied computer science. The company which is the legal owner of this service (PMD Technologie UG) is basically run all by myself; also this confrontation with one of the most powerful corporations worldwide that is worth roughly 190 billion dollar and has more than 30,000 employees is fought all by myself. I don't have any marketing or public relations experts I am just an IT guy with no experience whatsoever if it comes to such a gigantic David vs. Goliath situation.
After numerous reports questioning the legality of this service I have decided to get case studies from two highly reputable lawyers in Germany to prove the difference. I have asked them to create English reports about the legal situation of this service and the accusations Google has made. They agree that there are no copyrights of a third party violated by providing this service and it has to be considered legal. It might be surprising to some but they also agree that all claims Google has brought up so far are not justified: There is no TOS violation. They even question if Google can take action against so called "YouTube Converters/Recorders" since they seem to be protected by federal law. Google would have to make massive changes to their public broadcasting service to demand that such services shut down e.g. no more embedded videos, restrict access to registered users who have agreed to the TOS[..]. There are also doubts about the legitimacy of the section Google is accusing me to violate: Section 6.1K is designed to abandon a fundamental right all German citizens have. According to federal law you have the unquestionable right to create a private copy of certain media; including YouTube. Google's attempt to abrogate the rights of the public in their TOS has to be considered as illegal and is in a strong contrast to their public self-representation.
You can find both case studies and the executive summaries below:
- „In view of the foregoing, there are strong arguments in favour of YouTube not being able, successfully to object to either the user or the provision of the mp3 conversion service, youtube-mp3.org on the grounds of an infringement of its copyright or of unfair competition:
- As long as YouTube does not implement any additional safeguards such as encryption technology, in order to prevent permanent storage of streamed content, circumvention of technical safeguards does not occur in accordance with the provisions of § 95a para. 1 UrhG.
- Possible ancillary copyrights of YouTube to the platform as "database" are not infringed by users using youtube-mp3.org in order to download files. At the most, insignificant parts of the YouTube database are reproduced. There is therefore no infringement of YouTube's rights as producer of the database as provided under § 87b para. UrhG (Federal Copyright law).
- As long as YouTube does not implement any technical means of effectively preventing the downloading of streamed content or makes use of the platform conditional on prior acceptance of the terms and conditions, YouTube cannot prevent the use of youtube-mp3.org with reference to the "download ban", on the grounds of deliberate obstruction of a competitor as provided for in § 4 no. 10 UWG.“
Full Report (10MB)
Philipp C. Redlich (HÄRTING Rechtsanwälte) - HÄRTING is listed in TOP 100 Lawyer-List
- „The infringement of YouTube’s Terms of Service brings with it no legal consequences for youtube-mp3.org. Youtube-mp3.org is also not at fault so far as Copyright Law is concerned. Youtube-mp3.org undertakes no copyright-relevant action. Also, liability of the user’s for copyright infringement is not incurred because their actions are covered by the right to make private copies under paragraph 53 sub-paragraph 1 sentence 1 Copyright Law. The demand for youtube-mp3.org to bring about a cessation of its service is therefore unfounded.“
Full Report (1MB)
Christian Solmecke (WILDE BEUGER SOLMECKE) - Highly reputable Copyright Expert
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I have tried to get in touch with Google multiple times before this was happening because I always wanted to find a solution. I had a talk with their Business Development but there was no interest as well to find a suitable solution. Attempts to get into discussions through other departments of Google also failed. I did my very best to have a talk with Google but was ignored all the time. A recent call to Google's Chief Legal Associate was blocked by his assistant who said that he would only communicate with me in written form, however he didn't respond to three e-mails that have been sent to him.
Update: Google has released a new YouTube app for Android which allows videos to be downloaded and stored in a permanent fashion on the device. I don't think that it is necessary to comment this.
Google's abusive behaviour in the past
This isn't the first time Google attacked my service. The hostilities against me started in early 2010 when Google decided to violate their own contracts by closing down my AdSense account. They simply referred to the contracts for partners from another country while they were keeping several months of unpaid earnings. Withholding unpaid earnings was only allowed under very strict conditions by the terms we agreed on e.g. so called Click-Fraud. Google never accused me of meeting these conditions. They didn't want to talk with me regarding this matter and did not reply to letters sent by my lawyer.
More than a year later I wanted to work with another advertising company. I met some of their managers and they agreed to work with me and I signed a contract with them. Unfortunately Google was in the process of buying this company to strenghten their advertising division. This acquisition was blocked and checked by the Department of Justice because of Google's monopoly like position in online advertising. The attempt to work with this company for financing my service has also been interfered with. I was told that they couldn't fulfil the contract we have signed.
Such a rude behaviour in a market you basically dominate like a monopoly cannot be rightful from a personal perspective.
Ignorance and loss of reality
While I am the only person in this "market" that has the strong will to find a solution and is trying to reach out to Google again and again despite the fact I was being robbed, always ignored and treated badly all the time by Google; others are more realistic and do whats technically possible. They gave up the idea of providing a cloud powered service quickly and are making use of the hardware of the users; to put this in more easy words: A software will be loaded into the browser of the user and it runs directly on the hardware of the user. Conclusion: It is technically not possible for Google to stop its users from creating a recording of a YouTube video as long as the user has access to the video. The whole service itself is that simple that every Windows PC comes with the tools to do it: An audio recorder.
All sorts of popular audio players support the exact same functionality my service used to offer. Since they run directly on the clients hardware as well Google cannot simply block them out. They would have to file lawsuits, lots of lawsuits. They would have to target open source software developers and companies that are worth several hundred million dollar which are distributing and selling such software. I'm highly excited if Google drifted that much away from its roots that they ignore the technological aspects and start to file hundreds of lawsuits a day. At least they continue to send cease and desist letters to hundreds of developers.
It's also very interesting that Google hasn't noticed the unique aspects of this "market". Google is desperately trying to get the public to make use of the cloud but wasn't very successful yet. You might want to ask yourself: What markets do you know where cloud-software has replaced traditional client-software? I know two markets: E-Mail (Web-Mail is way more popular among private users than software like Outlook or Thunderbird) and this "market". File conversion and recording software is something that was always reserved to software you would install on your PC and not to a web-service you can access with your browser. Maybe Google should take a closer look and try to understand what was happening here. And as a final remark: Isn't it kind of funny that the biggest advocate of "The Cloud" is pushing all those users out of the cloud back to client-software?
No matter what Google publicly states: They won't be capable to stop their users from making use of such a service. It's technically not possible and it's just plain logic that there will be software as long as there is the demand. The only question is: Who will provide the software? I strongly believe that Google's action simply result in a ethical collapse of this "market": While trustworthy service providers are being killed by Google others will appear. Anonymous companies registered in locations like the Cayman Islands that have a different legal system. Those guys won't act like a little student who just wanted to build a great service but will be heavily profit oriented. They won't have a problem with spreading malware, showing pornographic ads to minors, advertising gambling or fake medicine, tricking their users into hidden costs and lots of other despicable things as long as the paycheck is big enough.
I got such offers all the time and I can say: The paycheck is big. But I had the decency to reject every of such offers. Unfortunately Google doesn't acknowledge such behaviour and wants its users to use the service of someone else that has other priorities. Here is my personal advice: Get yourself a great anti-virus software, you will need it. Maybe Google should create a public blog-post comparing different solutions while they are pushing their users into the hands of shady individuals.
I still believe that it is possible that all of this is a tragic concatenation of misunderstandings and still ask for a talk in the interest of all those users. This request is backed by thousands of people who signed a public petition. Once the petition bypasses a million people supporting it I will appear personally at a Google office with a huge stack of paper containing every supporter to
start an discussion get thrown out and be ignored once again.