Megaupload, Universal and the DMCA-less Mega Song Takedown

Opinion

Last week, Megaupload’s Mega Song was on its way to becoming a viral hit, only to be removed from YouTube by a Universal Music takedown demand. Following the filing of a Megaupload lawsuit the song is now back online, but Universal are standing firm.

The label says that they have a private arrangement with YouTube that falls outside of the DMCA, and that essentially they can take down any content they like, whether they own the copyrights or not. Ben Jones takes a closer look at the mechanics.

When something is flagged by YouTube’s Content ID the copyright claimant has to decide what will happen to the video. The video can be monetized with ads,  the video can be restricted from view in any or all countries, or nothing is done so the video can be used as a popularity measurement. In the Megaupload Mega Song case, UMG elected for a worldwide block.

In situations like these a marker is shown on the video manager of the uploader, alerting them to a copyright claim with details of who and what the claim is. It also gives the chance for the filing of a counter-claim with only three options. Once filed, the video is re-enabled and YouTube says they will contact the claimant to get an official DMCA notice.

This is as far as UMG says things have gone. However, investigating this myself, I uploaded a copy, set to ‘unlisted’ on Saturday. When the Content ID matched it and took it offline moments after it had been uploaded, a counter-notice was filed. That UMG would be consulted was displayed as the next step.

According to YouTube’s documents on the copyright process, for a claim to go any further requires a DMCA notice. Which is why late Monday morning, the following notice was sitting on the account.

The following email with similar information was also sent to us, including a link to a page where a DMCA counter-notice can be filed. It also required us to go through ‘Copyright School’ before we could do anything more with the account, including watching videos.

Dear BJonesTF:

We have disabled the following material as a result of a third-party notification from UMG claiming that this material is infringing:

P diddy feat kanye west,chris brown – Megaupload song

http://www.youtube.com/watch?v=EWeYXVezepE

Please Note: Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to prevent this from happening, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube’s copyright policy, please read the Copyright Tips guide.

If one of your postings has been misidentified as infringing, you may submit a counter-notification. Information about this process is in our Help Center.

Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material was disabled due to mistake or misidentification may be liable for damages.

Sincerely,

The YouTube Team

Others also decided to experience things firsthand. They too got formal DMCA notices from YouTube.

So, for UMG to say ‘you can’t sue us, since we didn’t file any DMCA notices’ is questionable at best. The only way their claims make any sense is if Google (or at least their YouTube subsidiary) has been misleading people over the way their Content ID system works. While the system, which had its 4th birthday only 2 weeks ago, seems like a good idea, its implementation is horribly flawed, as we noted a few months ago.

Yet the Megaupload case now rests on their actions. If they did require a DMCA notice from UMG before taking a further step, then it will be on record and UMG is going to be in a lot of trouble over its pleading.

If, however, YouTube didn’t require a formal DMCA notice from UMG before issuing their formal take-down notice and warning, they’ve not only violated their own documented procedures, undermining their credibility, but they undo a lot of the goodwill surrounding their opposition to SOPA.

At present this is the position UMG has put Google in, and it will come down to Google’s admission of the existence of a notice.

It remains to be seen what Google’s response will be, but it’s certainly a case that’s being watched by many, especially with SOPA under debate, which will only increase the likelihood of such situations happening in the future.

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