December 16, 2011 7:19am PT by Eriq Gardner
Megaupload's Viral Music Video Is Back on YouTube as Dispute Raises New Issues
In the past week, as observers watch Congress considering new legislation that would expand the ability of U.S law enforcement and copyright holders to take action against websites that traffic in infringing material, a drama has been unfolding over the removal of a hot viral music video on YouTube. After Universal Music Group caused the expulsion of a video featuring many superstars who purport to endorse Megaupload, the file-sharing website struck back, suing the label for copyright misrepresentation.
The video that showcases such stars as Will.I.Am, Sean "Diddy" Combs, Jamie Foxx, Kim Kardashian and others endorsing the controversial file sharing website, is now back online after YouTube told UMG earlier this week that further information would need to be provided for the flagged video to stay off its video-sharing service. As a result, Megaupload's founder Kim Dotcom is declaring "victory."
But perhaps just as importantly, UMG lodged an objection late yesterday to Megaupload's motion for a temporary restraining order with a bold legal brief that challenges everything we think we know about how flagged videos are removed from YouTube.
According to UMG, Megaupload is mistaken in its thought that the label exploited a provision of the Digital Millennium Copyright Act (DMCA) which allows ISPs like YouTube to claim safe harbor from liability so long as they expeditiously remove copyrighted infringing material upon notice. The DMCA also threatens copyright holders with potential fines for "knowingly" misrepresenting their copyrighted material when sending takedown notices that cause wrongful removal.
But UMG says it didn't actually send a takedown notice. Say what?
The label argues that it has a contractual agreement with YouTube that allows use of a "Content Management System" to remove videos from the site, "based on a number of contractually specified criteria."
The system appears to allow UMG, in some instances, to "file block" when a video appears that it finds objectionable.
The label submits a letter sent by its attorney Kelly Klaus to YouTube's legal director, Lance Kavanaugh, that references the agreement between the two companies, and the letter suggests that UMG's rights to remove videos go far. "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," writes Klaus in her letter.
In response, Megaupload's attorney says his client will be "asking the Court for access to the alleged UMG YouTube agreement."
In its objection to Megaupload's motion for a TRO, UMG sidesteps the question of what was objectionable in the controversial video in question. On Monday, UMG told THR that it had disputed "the unauthorized use of a performance from one of our artists," believed to be Gin Wigmore.
UMG doesn't detail the source of objection and suggests that the basis for Megaupload's lawsuit is merely speculation that the label used a "DMCA notificiation form."
The label also takes issue with further "speculation" by Megaupload founder Kim Dotcom that it had lodged takedown notices on other sites, including Vimeo, HuffingtonPost, and Tech News Today. The latter gathered interest by some who saw UMG's alleged efforts there as a purported attempt by the music company to censor the press.
In the objection, UMG also says that when Congress passed the DMCA, it didn't grant federal courts the ability to issue injunctions for alleged violations of section 512(f), the provision that creates liability for copyright holders knowingly misrepresenting their material in takedown notices. The company says that the legislation provides a counter-notification and "put-back" mechanism as an alternative resolution procedure. To grant a restraining order at this juncture would be "extraordinary," the label asserts.
Finally, UMG says Megaupload has failed to demonstrate misrepresentations, a likelihood of prevailing in the lawsuit, nor irreparable harm.
This dispute between UMG and Megaupload has been cited in the past week by some critics of the pending "Stop Online Piracy Act" as an example of the potential dangers of allowing copyright holders to seek court orders that would compel Internet providers to shut access to targeted websites. Universal's court brief yesterday also indicates discussions this past week between UMG and YouTube, whose parent company Google has been helping lead the charge against SOPA.
Interestingly, at a House Judiciary Committee meeting yesterday to discuss the SOPA bill, an amendment by Rep. Ben Quayle reportedly passed that would award attorney fees in instances when someone knowingly misrepresents that a site is dedicated to property theft.
On Friday, the judge denied the TRO request.
Also, YouTube has given us a 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."