Universal Music Group has responded to Megaupload's request for a temporary restraining order barring the music giant from further interference with the distribution of its "Mega Song." UMG insists that it had a right to take down the video—not under the Digital Millennium Copyright Act, as Megaupload had assumed, but under a private contractual arrangement between UMG and YouTube.
UMG's filing raises more questions than it answers. Most obviously, the firm has not explained why it took down the video in the first place. But the filing also raises deeper questions about UMG's effort to essentially opt out of the DMCA takedown rules. UMG seems to believe it can take down videos even if it doesn't hold the copyright to them, and that when UMG takes a video down from YouTube, the owner of that video can't avail herself of even the weak protections against takedown abuse provided by the DMCA.
A different kind of takedown
As we discussed on Thursday, UMG casts Megaupload as a major villain in the war over illegal file-sharing. Last week, Megaupload sought to bolster its image by releasing a pop-star-studded promotional video. UMG's takedown request was an unexpected publicity coup. Megaupload took full advantage, suing UMG on Monday and asking the judge for an immediate restraining order to prevent UMG from further interfering with the video's distribution.
UMG's response, filed late on Thursday, focuses on the narrow question of whether Judge Claudia Wilken should grant such a restraining order. The recording giant makes two principle arguments in opposition.
First, UMG says such a restraining order is not authorized by the Digital Millennium Copyright Act. The DMCA's notice-and-takedown safe harbor includes a provision for monetary damages against copyright holders who abuse the takedown process, but it does not give the courts the power to block copyright holders from sending takedown requests.
But more importantly, Universal argues that its takedown is not governed by the DMCA in the first place. In a statement supporting Megaupload's complaint, CIO Kim Dotcom had stated "it is my understanding" that Universal had invoked the DMCA's notice-and-takedown provisions. But UMG says Dotcom got it wrong: the takedown was sent "pursuant to the UMG-YouTube agreement," which gives UMG "the right to block or remove user-posted videos through YouTube's CMS based on a number of contractually specified criteria."
In other words, when UMG removes a video using YouTube's CMS, that might be a takedown, but it's not a DMCA takedown. And that, UMG argues, means that the DMCA's rule against sending takedown requests for files you don't own doesn't apply.
"Not limited to copyright infringement"
UMG underscored the point by including a letter UMG lawyer Kelly Klaus sent to YouTube on Wednesday. In that letter, Klaus wrote:
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 UGC Video Service Providers, including without limitation Paragraphs 1(b) and 1(g) thereof.
This appears to be a reference to the agreement underlying the VEVO partnership between Google and UMG announced in April 2009. As far as we know, the agreement isn't public, so we can only speculate on what's in Paragraphs 1(b) and 1(g). But we plan to ask Google for a copy.
UMG's response also sheds some light on another mystery: why Monday's issue of Tech News Today was yanked from YouTube. When UMG removes a video via YouTube's CMS, a "reference file" is created that "in theory is supposed to identify other instances of postings of the same content." UMG speculates that this "reference file" system was responsible for the accidental removal from YouTube of a Tech News Today episode featuring the Megaupload video.
The recording industry is currently lobbying for passage of the Stop Online Piracy Act, which would create a DMCA-style takedown regime for advertising and credit card networks. Critics may question whether it's wise to give new takedown powers to copyright holders that demonstrate such a cavalier attitude toward the rights of others.
Update:YouTube provided Ars Technica with the following statement: "Our partners do not have the right to take down videos from YouTube unless they own the rights to them or they are live performances controlled through exclusive agreements with their artists, which is why we reinstated it."
This is a more specific response than the one YouTube gave to Techdirt earlier in the day. It appears to specifically rule out takedowns for reasons other than copyright or this "live performance" exception. That's good, but we'd feel more comfortable if the exact text of the agreement (and similar agreements YouTube might have with other partners) were made available to the public.
Listing image by Image courtesy of Megaupload
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