UMG takes down Megaupload video then claims they did nothing wrong

Rich Fiscus
16 Dec 2011 12:29

As supporters of SOPA and PIPA, the anti-piracy bills working their way through Congress, continue to insist they won't be used to censor the Internet, the entertainment industry seems determined to prove they intend to do just that.
The latest big target for censorship is the file locker service Megaupload. Besides being one of the most successful cloud storage services, Megaupload is also one of the sites at the top of the entertainment industry's "rogue sites" list, making them one of the first services you can expect to be targeted if SOPA or PIPA becomes law.
But even without either measure, Megaupload finds itself fighting for the right to publish completely legal content to defend themselves in a PR war started by the major record labels and movie studios. As part of that effort, Megaupload commissioned a music video featuring a number of music industry heavyweights.
After it was uploaded to YouTube and started getting a lot of attention on Twitter, Universal Music Group had the video removed taken down. When Megaupload protested the removal of the video, it was reinstated and then almost immediately taken down again.
Facing the possibility of having their YouTube account suspended for repeated copyright infringement allegations, Megaupload decided to pursue the matter in the courts instead. Believing UMG had issued DMCA takedown requests, which would require them to be the copyright holder, they alleged UMG was in violation of that law.
As it turns out, UMG did not actually send DMCA takedown notices because they have a contract with YouTube which allows them to skip this formality and simply demand content be taken down. Even more bizarre is the fact they are now claiming that not only does this make them immune from the insignificant sanctions allowed under the DMCA, but it also allows them to remove content owned by other people from YouTube.
However, a letter submitted as evidence in the case by UMG lawyers suggests YouTube does not share that interpretation of the contract:

your letter could be read to suggest that UMG's rights to use the YouTube "Content Management System" with respect to certain user-posted videos are limited to instances in which UMG asserts a claim that a user-posted video contains material that infringes a UMG copyright. As you know, UMG's rights in this regard are not limited to copyright infringement, as set forth more completely in the March 31, 2009 Video License Agreement for TGC Video Service Providers, including without limitation in Paragraphs 1(b) and 1(g) thereof.

More evidence that UMG had, in fact, claimed the video was infringing, or at least that YouTube believed they had, was presented today by TorrentFreak. Last week they uploaded a copy of the video and received notice of a copyright complaint. The notice is unambiguous about the issue.
The UMG agreement in question relates to YouTube's content fingerprinting system, created at the request of the entertainment industry, which is intended to be used for identifying and automatically removing infringing videos. However, the details of the agreement for use of that system are not publicly available.
For their part, UMG seems to be in a rush to have the suit dismissed, citing the fact the video is now being allowed by YouTube. They have also gone to great pains to include several mentions of completely unrelated allegations that Megaupload promotes piracy in their filings.
In fact, it seems that if there was no copyright infringement allegation involved in this case, it should be up to either UMG or YouTube to provide details of what did happen and why the video was taken down in the first place. Despite claims to the contrary from UMG's lawyers, Megaupload did not jump to the conclusion a copyright claim was involved.
That was the information they were given by YouTube. It only makes sense to hear from YouTube on what really happened considering UMG's strongest evidence in support of their claim is reaffirming it to a third party in their letter. Whether that happens or not will likely depend on how the judge feels about the numerous non-denial denials in UMG's filings.
For example, while they imply they didn't take any action to have the video removed from other websites, they never actually deny making the attempt. Instead they say Megaupload's lawyers can't prove it. That should be cleared up easily enough by asking the operators of those sites.
But the bigger point here is that UMG has effectively admitted this takedown was never about copyright. They demanded YouTube censor Megaupload and justify that by saying they have a contract which allows it so it's fine. It's painfully clear what they would do with a law like SOPA that gives them much more power.
You can read the complaint and supplemental filing from Megaupload, as well as UMG's response and the letter to YouTube, below: