If circumvention falls outside of the safe harbor provisions (which seems to be the plain text of the law), that just means that the ISP liability, if any, begins immediately on hosting it, and their liability for hosting it isn't negated by taking it down in accordance with the safe harbor process. OTOH, while the mental state required for a 1201 violation is not explicit, the most reasonable reading is that it requires knowledge of the circumventing purpose, which would mean liability would not attach to an hands-off distributor of material supplied by a third party until they had notice, which, is essentially equivalent to the safe harbor for infringement. So, from a liability perspective, it's at least plausible that there isn't a big difference here between circumvention and safe harbor provision.
And, on top of the circumvention, this article tries to argue against infringement that the RIAA allegations, beyond circumvention, only involve “incidental copying", but any copying not either licensed or protected as fair use (which even the article here does not claim applies) is infringement. So, the article makes the infringement case while attempting to deny it. The infringement may only be contributory rather than direct on the part of youtube-dl’s creators, as well as anyone knowingly distributing it, but contributory infringement is still infringement, and so governed by the infringement safe harbor directly.
When you watch something from Youtube in the browser, it makes copies on your computer---in memory transiently, and on disk files.
Computers aren't radio or CDs, there's no way to actually consume media on them without copies being made at some point.
Additionally, its not obvious who is infringing. Unlike say, downloading a torrent, people have legal access to youtube ordinarily, and pay for it. If you pay for offline access to music, why can't you use youtube-dl? Any infringement will only begin when your license to the content ends.
Additionally, the software just makes HTTP(s) requests and can work with any site. I actually have never used it to download anything on youtube.
> any copying not either licensed or protected as fair use (which even the article here does not claim applies) is infringement.
Not sure what you mean by this, as the article does claim the use in the test suite is fair use.
> At best, youtube-dl’s test suite may be infringing works when run [...]. Even that argument is specious: Given output is discarded, no permanent copy is retained, and the action is for research and development, and numerous Fair Use affirmative defence claims exist under §107, notably (1) and (4), test suite execution falls outside exclusive rights.
It claims that a fair use defense exists and points to two of the four factors in fair use (mistakenly referring to them as separate claims). And, sure, that's an argument that Fair Use applies, which I missed, but is not an argument that this isn't a valid 512 notice. A valid 512 notice does not require actual infringement, it requires that the person the sending the notice have and assert a good-faith belief in infringement. While we can't explore the mind of the RIAA as to whether they have such a belief, they clearly have asserted that the tool exists for the express purpose of infringing their works such that knowingly distributing it would make the host liable for contributory infringement as well as making anti-circumvention claims.
An assertion of non-infringement, whether based on fair use or anything else, is obviously a basis for a counter-notice, and also an argument to make if the RIAA actually sues the content provider after the takedown (without or without counter-notice based restoration) to the service provider.
And, on top of the circumvention, this article tries to argue against infringement that the RIAA allegations, beyond circumvention, only involve “incidental copying", but any copying not either licensed or protected as fair use (which even the article here does not claim applies) is infringement. So, the article makes the infringement case while attempting to deny it. The infringement may only be contributory rather than direct on the part of youtube-dl’s creators, as well as anyone knowingly distributing it, but contributory infringement is still infringement, and so governed by the infringement safe harbor directly.