7 ms·

YouTube Says Universal Had No ‘Right’ to Take Down Megaupload Video

152 points by pwg 15y ago

Vivtek 15y ago
So, unless I mistake what UMG is saying, they maintain that this wasn't a DMCA takedown, but that due to the DMCA they must be held harmless? If they used a computer system to commit fraud, doesn't that make them guilty of the "computer hacking" we've all been told is the downfall of civilization? But at the end of the day, their illicit actions have caused Megaupload actual monetary damages - I hope Megaupload ends up owning them.
- trun 15y ago
  Here's the part I find interesting. YouTube's content filtering system would have required UMG to upload a copy of the video (or at least have a copy on hand to generate the fingerprint)... "YouTube has engineered a filtering system enabling rights holders to upload music and videos they own to a “fingerprinting” database." Even if UMG isn't guilty of abuse of the DMCA takedown system, might they be guilty of copyright infringement for having made an unauthorized copy of the Megavideo and uploading it as their own? I would really like to know more about how YouTube's fingerprinting system works.
  - deleted 15y ago
    [deleted]
  - jonknee 15y ago
    "Enabling" doesn't mean "require". YouTube lets content owners cut infringement off at the pass by uploading their stuff to detect violations before they occur. You don't need to upload anything to file a DMCA request (I have a feeling that would be illegal). http://www.youtube.com/t/dmca_policy http://www.youtube.com/t/dmca_policy
- antiterra 15y ago
  It's common in law to make a legal argument based on a claim and then to continue a conjectured argument even if that claim is rejected. For example, they say they are not subject to the DMCA (17 512(f)) then claim that even if they were, that the case would still not prevail due to caselaw and requirements of the DMCA. UMG also cites convincing caselaw arguing that irreperable harm has not been done since the alleged infringing activity has ceased in a relatively short amount of time. What damages can Megaupload quantify? It seems possible UMG could only be on the hook for a contract dispute with YouTube.
  - Vivtek 15y ago
    It cost Megaupload $3 million to make this video for their own advertising - quashing that advertising fraudulently seems damaging to me. How you'd quantify it I don't know.
    - antiterra 15y ago
      Except there's not necessarily a 'right' to have your video on YouTube, and it's possible that UMG was acting, albeit with bad faith, in the capacity of YouTube curator. Megaupload's Friday filing seems to imply their current strategy is to hunt for evidence of DMCA takedown requests sent to other sites like Vimeo, as well as expose whatever they can about the agreement between UMG and YouTube.
      - regularfry 15y ago
        The hosting agreement for the video is purely between YouTube and the uploaders, though. Both YouTube and the uploaders can make a case for tortious interference.
      - Vivtek 15y ago
        UMG was acting in the capacity of YouTube curator in the same sense script kiddies are acting in the capacity of security leak exposure consultants, perhaps. I'd hate to have to make that argument to a judge that understood the actual situation. Doesn't this obvious bad faith have any negative repercussions for UMG?
- tibbon 15y ago
  What if we make requests to have all UMG material removed, even if we don't own it? It sounds like the DMCA would protect us according to UMG.
  - waqf 15y ago
    My understanding is that UMG has an arrangement with YouTube whereby they make a request (which is not a DMCA request) that a video be removed, and it is removed. You and I don't have that arrangement with YouTube, so we can't make those requests-which-are-not-DMCA-requests.
    - click170 15y ago
      I think the important point on that is that Youtube wouldn't be providing that take-down utility if it wasn't required to do so by the DMCA. Based on that, it is pretty clear to me these in fact are DMCA takedown requests, despite UMG trying to tuck it under the rug by metaphorically calling an elephant (take-down request) a mouse (not a take-down request).
      - seanp2k2 15y ago
        >"Youtube wouldn't be providing that take-down utility if it wasn't required to do so by the DMCA" Can you cite which part of the DMCA says that content hosting platforms/distribution channels need to /make it easy/ for publishers to take down stuff? AFAIK, YouTube was NOT required to provide this -- they just did it because they were probably getting hundreds of DMCAs per day and it was eating up time trying to validate them all. I deal with DMCA takedown requests and we do things a lot differently. It's pretty commonly accepted that ISPs and networks have a 24-48 hour grace period before they MUST disable the content. The actual "grace period" isn't defined, but this page provides more info and suggests 6-12 hours, which I feel is unreasonably short for a user to take the content down by their own action: http://www.shearsocialmedia.com/2010/08/dmcas-safe-harbor-may-only-provide.html http://www.shearsocialmedia.com/2010/08/dmcas-safe-harbor-ma... Here's the thing, we do web hosting. When DMCA idiot lawyers call us, they want /the entire server or IP taken offline/, sometimes just for one image (like a 400x300px JPG of the cover of a magazine). That, again IMO, is crazy. We never do that to our clients, but that's what the copyright thugs demand. We also force them to send all requests to abuse@ our domain and we refuse to discuss issues via phone. We've never been in legal trouble because of any of this, but we've had some of these thugs threaten to sue us (and they've also lied to us about what we're required to do). Back to the meaning of "expeditious", Wikipedia has some great info: https://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act#Meaning_of_.22expeditious.22 https://en.wikipedia.org/wiki/Online_Copyright_Infringement_... and suggests that 24 hours might be acceptable. Did I mention that most of the agencies sending us DMCAs do so at 10PM EST on a saturday, or other times obviously meant to force us to pull the content rather than give the client time to take it down willingly (we get a lot in the morning hours of Sunday as well). Lots of these firms are in India and just use something like TinEye to match images, then have aggressive people call during their day, but I still hold that this type of behaviour is pretty obviously done on purpose. Anyway, regarding my original point, I think that it's not reasonable to expect someone like YouTube to provide a tool that is easy to use to take down videos. I think this was developed out of some big idea to try to gain favour with the MAFIAA, and I'd be very surprised if YouTube was in fact required by any law to develop a tool that makes it convenient for rights holders to pull content.
thehodge 15y ago
I tried reading the article but after 20 seconds or so a huge lightbox appeared with an advertisement that wouldn't let me close until the video had loaded... I don't mind advertising on the web but that really takes the piss...
- jrockway 15y ago
  AdBlock.
- click170 15y ago
  That's a bug. In their advertising policy, but a bug none the less. Treat it as such: if you care passionately enough about that program (website) then file a bug report (get in touch via 'contact us') to inform them of the problem. If you could never visit that site again and be happier for it, maybe don't bother filing that bug. Also: Adblock Plus.
joshuahedlund 15y ago
So basically Universal lied to YouTube and said the video was copyright infringement when it wasn't, and basically if SOPA passes Universal could do this to entire websites and not just single videos?
- rcthompson 15y ago
  A better explanation would be that YouTube gave UMG (and other 'content' companies) a kill switch that works on any video and said 'Promise you'll only use this on stuff that infringes your copyright, ok?' UMG then crossed their fingers behind their back and said 'Sure, whatever.' The second party of your comment is correct. SOPA would give these same companies a kill switch for websites instead of YouTube videos.
  - Vivtek 15y ago
    And merchant accounts - don't forget the kill switch for merchant accounts.
- rhizome 15y ago
  In which case it would appear to be an antitrust issue if there is a magic switch that only some rightsholders have access.
- nextparadigms 15y ago
  It's worse than giving them a kill switch. It even gives merchant account providers the incentive to take out "rogue" sites before they even get to make that request of them. The providers get to claim "immunity" from lawsuits if they "act in good faith" and take the sites out themselves before they ask them to.
matznerd 15y ago
Taking down a video produced by a competitor is exactly the kind of problems that come about when the "weapons" to stop piracy are handed over to corporate interests. This is just the tip of the iceberg, it will be 100 times worse if SOPA passes.
hello_moto 15y ago
I would like to see congress men get fired if SOPA incident is over.
notatoad 15y ago
what i don't understand about this is that clearly UMG has some special access or privileges with youtube. why hasn't youtube taken that access away? if i file a DMCA complaint as a random nobody, google reviews it at their convenience before acting, right? and if google catches me abusing the system, they're going to take some action against me. imho, if UMG is going to abuse the process youtube should treat them like any other random dude. their takedown requests can go into a queue and get reviewed by google rather than being processed automatically, say at a rate of about one per day.
- renata 15y ago
  No, if you file a DMCA request as a random nobody, Google does not have the option of reviewing it (or they lose their safe harbor). Their only response to a complete DMCA request has to be to take the video down. Then the uploader can counter-notice if they feel that it's an invalid request.
- electromagnetic 15y ago
  I think it's a combination of UMG having a massive army of lawyers and youtube/google not wanting to have to fight them. However instances like this abuse of the DMCA might be grounds for youtube/google to have a form of restraining order placed on UMG. It would seriously hamper UMG's efforts if they had to prove conclusively that a file was infringing. That would quickly put them to a one-a-day rate if they had to give proof that the file in question wasn't under fair use/review/parody etc.
jrockway 15y ago
What I find most interesting is that despite seeing this video linked here at least five times, I still haven't watched it, because it's an ad and I hate ads. Viral marketing fail.
- piggity 15y ago
  Hypothetically speaking, just because you didn't catch a virus doesn't mean that that virus can't be incredibly effective (or "viral").
- atlantic 15y ago
  You are not statistically significant.
- astrodust 15y ago
  And yet you've heard more about MegaUpload in the last week than you ever have before.
- astrodust 15y ago
  And yet you've heard more about MegaUpload in the last week than you ever have before.
jgh 15y ago
I sure hope UMG loses.
deleted 15y ago
[deleted]
- runn1ng 15y ago
  I am all against conspiracy theories, but realize that the media are often owned by the very same companies that push the SOPA, or, at least, are very close. For example, Paramount is a subsidiary of Viacom and a part of MPAA, while CBS is a Viacom spin-off.
azernik 15y ago
The oddest thing about this legal argument of UMG is that, while they claim that this takedown mechanism is a purely private arrangement that is nothing to do with the DMCA, the mechanism was pretty explicitly added to fulfill the safe harbor clause of the act. Lawyer please: does the relationship between the takedown mechanism and the DMCA invalidate UMGs defense?
deleted 15y ago
[deleted]
deleted 15y ago
[deleted]
seanp2k2 15y ago
Here was my idea: upload a bunch of music from Universal artists, then tag them all as "auto-takedown". Breaking the YouTube detection system will be the only way to get rid of it.

152 points by pwg 15y ago

So, unless I mistake what UMG is saying, they maintain that this wasn't a DMCA takedown, but that due to the DMCA they must be held harmless? If they used a computer system to commit fraud, doesn't that make them guilty of the "computer hacking" we've all been told is the downfall of civilization? But at the end of the day, their illicit actions have caused Megaupload actual monetary damages - I hope Megaupload ends up owning them.

trun 15y ago
Here's the part I find interesting. YouTube's content filtering system would have required UMG to upload a copy of the video (or at least have a copy on hand to generate the fingerprint)... "YouTube has engineered a filtering system enabling rights holders to upload music and videos they own to a “fingerprinting” database." Even if UMG isn't guilty of abuse of the DMCA takedown system, might they be guilty of copyright infringement for having made an unauthorized copy of the Megavideo and uploading it as their own? I would really like to know more about how YouTube's fingerprinting system works.
- deleted 15y ago
  [deleted]
- jonknee 15y ago
  "Enabling" doesn't mean "require". YouTube lets content owners cut infringement off at the pass by uploading their stuff to detect violations before they occur. You don't need to upload anything to file a DMCA request (I have a feeling that would be illegal). http://www.youtube.com/t/dmca_policy http://www.youtube.com/t/dmca_policy
antiterra 15y ago
It's common in law to make a legal argument based on a claim and then to continue a conjectured argument even if that claim is rejected. For example, they say they are not subject to the DMCA (17 512(f)) then claim that even if they were, that the case would still not prevail due to caselaw and requirements of the DMCA. UMG also cites convincing caselaw arguing that irreperable harm has not been done since the alleged infringing activity has ceased in a relatively short amount of time. What damages can Megaupload quantify? It seems possible UMG could only be on the hook for a contract dispute with YouTube.
- Vivtek 15y ago
  It cost Megaupload $3 million to make this video for their own advertising - quashing that advertising fraudulently seems damaging to me. How you'd quantify it I don't know.
  - antiterra 15y ago
    Except there's not necessarily a 'right' to have your video on YouTube, and it's possible that UMG was acting, albeit with bad faith, in the capacity of YouTube curator. Megaupload's Friday filing seems to imply their current strategy is to hunt for evidence of DMCA takedown requests sent to other sites like Vimeo, as well as expose whatever they can about the agreement between UMG and YouTube.
    - regularfry 15y ago
      The hosting agreement for the video is purely between YouTube and the uploaders, though. Both YouTube and the uploaders can make a case for tortious interference.
    - Vivtek 15y ago
      UMG was acting in the capacity of YouTube curator in the same sense script kiddies are acting in the capacity of security leak exposure consultants, perhaps. I'd hate to have to make that argument to a judge that understood the actual situation. Doesn't this obvious bad faith have any negative repercussions for UMG?
tibbon 15y ago
What if we make requests to have all UMG material removed, even if we don't own it? It sounds like the DMCA would protect us according to UMG.
- waqf 15y ago
  My understanding is that UMG has an arrangement with YouTube whereby they make a request (which is not a DMCA request) that a video be removed, and it is removed. You and I don't have that arrangement with YouTube, so we can't make those requests-which-are-not-DMCA-requests.
  - click170 15y ago
    I think the important point on that is that Youtube wouldn't be providing that take-down utility if it wasn't required to do so by the DMCA. Based on that, it is pretty clear to me these in fact are DMCA takedown requests, despite UMG trying to tuck it under the rug by metaphorically calling an elephant (take-down request) a mouse (not a take-down request).
    - seanp2k2 15y ago
      >"Youtube wouldn't be providing that take-down utility if it wasn't required to do so by the DMCA" Can you cite which part of the DMCA says that content hosting platforms/distribution channels need to /make it easy/ for publishers to take down stuff? AFAIK, YouTube was NOT required to provide this -- they just did it because they were probably getting hundreds of DMCAs per day and it was eating up time trying to validate them all. I deal with DMCA takedown requests and we do things a lot differently. It's pretty commonly accepted that ISPs and networks have a 24-48 hour grace period before they MUST disable the content. The actual "grace period" isn't defined, but this page provides more info and suggests 6-12 hours, which I feel is unreasonably short for a user to take the content down by their own action: http://www.shearsocialmedia.com/2010/08/dmcas-safe-harbor-may-only-provide.html http://www.shearsocialmedia.com/2010/08/dmcas-safe-harbor-ma... Here's the thing, we do web hosting. When DMCA idiot lawyers call us, they want /the entire server or IP taken offline/, sometimes just for one image (like a 400x300px JPG of the cover of a magazine). That, again IMO, is crazy. We never do that to our clients, but that's what the copyright thugs demand. We also force them to send all requests to abuse@ our domain and we refuse to discuss issues via phone. We've never been in legal trouble because of any of this, but we've had some of these thugs threaten to sue us (and they've also lied to us about what we're required to do). Back to the meaning of "expeditious", Wikipedia has some great info: https://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act#Meaning_of_.22expeditious.22 https://en.wikipedia.org/wiki/Online_Copyright_Infringement_... and suggests that 24 hours might be acceptable. Did I mention that most of the agencies sending us DMCAs do so at 10PM EST on a saturday, or other times obviously meant to force us to pull the content rather than give the client time to take it down willingly (we get a lot in the morning hours of Sunday as well). Lots of these firms are in India and just use something like TinEye to match images, then have aggressive people call during their day, but I still hold that this type of behaviour is pretty obviously done on purpose. Anyway, regarding my original point, I think that it's not reasonable to expect someone like YouTube to provide a tool that is easy to use to take down videos. I think this was developed out of some big idea to try to gain favour with the MAFIAA, and I'd be very surprised if YouTube was in fact required by any law to develop a tool that makes it convenient for rights holders to pull content.

thehodge 15y ago

I tried reading the article but after 20 seconds or so a huge lightbox appeared with an advertisement that wouldn't let me close until the video had loaded... I don't mind advertising on the web but that really takes the piss...

jrockway 15y ago
AdBlock.
click170 15y ago
That's a bug. In their advertising policy, but a bug none the less. Treat it as such: if you care passionately enough about that program (website) then file a bug report (get in touch via 'contact us') to inform them of the problem. If you could never visit that site again and be happier for it, maybe don't bother filing that bug. Also: Adblock Plus.

joshuahedlund 15y ago

So basically Universal lied to YouTube and said the video was copyright infringement when it wasn't, and basically if SOPA passes Universal could do this to entire websites and not just single videos?

rcthompson 15y ago
A better explanation would be that YouTube gave UMG (and other 'content' companies) a kill switch that works on any video and said 'Promise you'll only use this on stuff that infringes your copyright, ok?' UMG then crossed their fingers behind their back and said 'Sure, whatever.' The second party of your comment is correct. SOPA would give these same companies a kill switch for websites instead of YouTube videos.
- Vivtek 15y ago
  And merchant accounts - don't forget the kill switch for merchant accounts.
rhizome 15y ago
In which case it would appear to be an antitrust issue if there is a magic switch that only some rightsholders have access.
nextparadigms 15y ago
It's worse than giving them a kill switch. It even gives merchant account providers the incentive to take out "rogue" sites before they even get to make that request of them. The providers get to claim "immunity" from lawsuits if they "act in good faith" and take the sites out themselves before they ask them to.

matznerd 15y ago

Taking down a video produced by a competitor is exactly the kind of problems that come about when the "weapons" to stop piracy are handed over to corporate interests. This is just the tip of the iceberg, it will be 100 times worse if SOPA passes.

hello_moto 15y ago

I would like to see congress men get fired if SOPA incident is over.

notatoad 15y ago

what i don't understand about this is that clearly UMG has some special access or privileges with youtube. why hasn't youtube taken that access away? if i file a DMCA complaint as a random nobody, google reviews it at their convenience before acting, right? and if google catches me abusing the system, they're going to take some action against me. imho, if UMG is going to abuse the process youtube should treat them like any other random dude. their takedown requests can go into a queue and get reviewed by google rather than being processed automatically, say at a rate of about one per day.

renata 15y ago
No, if you file a DMCA request as a random nobody, Google does not have the option of reviewing it (or they lose their safe harbor). Their only response to a complete DMCA request has to be to take the video down. Then the uploader can counter-notice if they feel that it's an invalid request.
electromagnetic 15y ago
I think it's a combination of UMG having a massive army of lawyers and youtube/google not wanting to have to fight them. However instances like this abuse of the DMCA might be grounds for youtube/google to have a form of restraining order placed on UMG. It would seriously hamper UMG's efforts if they had to prove conclusively that a file was infringing. That would quickly put them to a one-a-day rate if they had to give proof that the file in question wasn't under fair use/review/parody etc.

jrockway 15y ago

What I find most interesting is that despite seeing this video linked here at least five times, I still haven't watched it, because it's an ad and I hate ads. Viral marketing fail.

piggity 15y ago
Hypothetically speaking, just because you didn't catch a virus doesn't mean that that virus can't be incredibly effective (or "viral").
atlantic 15y ago
You are not statistically significant.
astrodust 15y ago
And yet you've heard more about MegaUpload in the last week than you ever have before.
astrodust 15y ago
And yet you've heard more about MegaUpload in the last week than you ever have before.

jgh 15y ago

I sure hope UMG loses.

deleted 15y ago

[deleted]

runn1ng 15y ago
I am all against conspiracy theories, but realize that the media are often owned by the very same companies that push the SOPA, or, at least, are very close. For example, Paramount is a subsidiary of Viacom and a part of MPAA, while CBS is a Viacom spin-off.

azernik 15y ago

The oddest thing about this legal argument of UMG is that, while they claim that this takedown mechanism is a purely private arrangement that is nothing to do with the DMCA, the mechanism was pretty explicitly added to fulfill the safe harbor clause of the act. Lawyer please: does the relationship between the takedown mechanism and the DMCA invalidate UMGs defense?

deleted 15y ago

[deleted]

deleted 15y ago

[deleted]

seanp2k2 15y ago

Here was my idea: upload a bunch of music from Universal artists, then tag them all as "auto-takedown". Breaking the YouTube detection system will be the only way to get rid of it.