Just As US Gov't Was Giving Back The Blog It Illegally Censored For Over A Year, Hillary Clinton Speaks Out Against Internet Censorship
Perhaps SOPA Should Be Called The Stop Online PRIVACY Act

Universal Music Issues Questionable Takedown On Megaupload Video That Featured Their Artists [Updated]

Copyright

from the this-is-going-to-get-interesting dept

Fri, Dec 9th 2011 02:36pm -

As a bunch of you have noticed, the video that we had a couple posts ago, involving a bunch of the RIAA’s biggest artists singing or speaking along to a song endorsing MegaUpload (which the RIAA insists is a rogue site) has been… taken down due to a copyright claim from Universal Music. Here’s a screenshot:

We’re hearing a few different stories as to what’s going on, but some people are insistent that nothing in the video violates a UMG copyright. We will do an update or do a new post once there’s more info, but (of course) trying to censor information online only seems to make it that much more popular. And it appears that the video is already showing up elsewhere. Either way, it’s quite a story isn’t it? RIAA and Universal Music insist that they’re trying to shut down this site “for the artists.” Then the artists speak up in support of the site… and Universal Music censors them using the same copyright law they’re trying to expand…

Update: TorrentFreak has the response from MegaUpload:

?Those UMG criminals. They are sending illegitimate takedown notices for content they don?t own,? he told us. ?Dirty tricks in an effort to stop our massively successful viral campaign.?

So did Universal have any right at all to issue YouTube with a takedown notice? Uncleared samples, anything?

?Mega owns everything in this video. And we have signed agreements with every featured artist for this campaign,? Kim told TorrentFreak.

?UMG did something illegal and unfair by reporting Mega?s content to be infringing. They had no right to do that. We reserve our rights to take legal action. But we like to give them the opportunity to apologize.?

?UMG is such a rogue label,? Kim added, wholly appreciating the irony.

The TorrentFreak has some quotes from some legal experts, pointing out that that is exactly why we don’t need things like SOPA and PIPA which would go much further and allow significantly more collateral damage on such bogus takedowns.

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Companies: megaupload, riaa, universal music

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Comments on “Universal Music Issues Questionable Takedown On Megaupload Video That Featured Their Artists [Updated]”

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120 Comments
Anonymous Coward says:

Re: Re:

“If the song contained musical notes and/or words that are also included in songs”

Your post contains words that are used in the posts of others. You’re infringing.

Just about every song contains musical notes used in the works of others. We all use similar musical notes just like we use similar words.

PaulT (profile) says:

Re: Re: Re:4 Re:

“It’s presented as a song. Doesn’t matter what they’re singing about, they’re under contract to record music for someone else.”

While I still have a problem with this (any personal expression in the form of music is blocked by a major label contract), you’re correct here. The artists in question were presumably prohibited from doing what they did by contracts they signed. If their work was in violation of said contract, Universal are within their rights to remove it.

However, there are several troubling issues brought up by this. For one, Megaupload had no prior knowledge of this. They could not possibly be expected to know the details of the contracts signed by the artists in question. So, they did what they normally do – and what ACs here usually attack them for – which is to respond a notice of a violation.

This is the problem most right-thinking people have with SOPA and its ilk. If Universal responded in accordance to SOPA instead of the DMCA, they could have had Megaupload shut down. No questions asked, they and any similar site could lose its platform overnight, at the request of the label. For posting a video that under any normal circumstance would be protected free speech. The only reason it isn’t is a contract signed between private parties that Megaupload could not possibly have any knowledge of. All without any due process or hearing.

See the problem?

Capitalist Lion Tamer (profile) says:

Re: Re:

If the song contained musical notes and/or words that are also included in songs to which UMG holds the copyright, then the video is clearly infringement.

Yes, that’s clearly all that’s going on here. Artists infringing on their own works. Not some sort of “we sure as hell don’t approve of this message” yoinkage.

Don’t be so willfully obtuse.

Anonymous Coward says:

Re: Re:

I don’t believe artists can be sued for the use of their own work (in the states at least) thanks to landmark court cases involving George Harrison and others (look it up), and moreover, that they can show/copy their own work without paying any royalties. If they used their own music, UMG should not be able to shut them down, though it is in a grey area for sure.If they used other artist’s work, it’s clear cut that UMG can shut them down.

Karl (profile) says:

Re: Re: Re:

I don’t believe artists can be sued for the use of their own work (in the states at least)

Not true. This very argument was advanced by John Fogerty in a request for summary judgement early in the Fogerty v. Fantasy case, and the judge ruled in Fantasy’s favor:

A “beneficial owner” is defined as including “an author who had parted with legal title to the copyright in exchange for percentage royalties based on sales or license fees.” […]

Since a beneficial owner has no independent right to use or license the copyright, the beneficial owner can infringe upon the legal owner’s exclusive rights. A copyright owner can infringe upon any exclusive right which he transfers or grants to another. A beneficial owner has transferred his exclusive rights over the copyright’s use in exchange for an economic interest in proceeds derived from that use. Therefore, if the beneficial owner attempts to exercise the exclusive “use” rights he has transferred, the legal owner of those exclusive rights may seek an action for infringement.

Of course, after the case went to trial, the jury found that the common elements were merely “stylistic,” and not literal expression, so Fogerty was not infringing in any case.

Also: I’m not sure what Harrison case you’re talking about, but if it was Bright Tunes v. Harrisongs, Harrison lost that case.

Read the facts says:

Re: Coward

MegaUpload owns the rights to every bit of the video, including a uniquely created song specifically designed for the video. The only infringement happening is that of UMG on MegaUploads property.

It really isn’t hard to understand. UMG violated MegaUpload’s right to display their content.

Imagine the Washington Post walking into CNN headquarters and pulling the video feed.

There is no probably cause for this illegal search and seizure.

Read the facts says:

Re: Coward

MegaUpload owns the rights to every bit of the video, including a uniquely created song specifically designed for the video. The only infringement happening is that of UMG on MegaUploads property.

It really isn’t hard to understand. UMG violated MegaUpload’s right to display their content.

Imagine the Washington Post walking into CNN headquarters and pulling the video feed.

There is no probably cause for this illegal search and seizure.

Anonymous Coward says:

Re: Re: Re:

The person that chows caviar every night is the fat pig that runs mega-upload:

http://news.cnet.com/8301-31001_3-20087753-261/the-mystery-man-behind-megaupload-piracy-fight/?tag=mncol;txt

This is the slimeball that Masnick is defending, and the guy that PAID the “artists” in that ad EXORBITANT dollars to sell out their soul and conscience (whatever was left of it).

Anonymous Coward says:

Re: Re: Re: Re:

“the guy that PAID the “artists” in that ad EXORBITANT dollars to sell out their soul and conscience (whatever was left of it)”

Okay, so you believe it is bad for people to pay artists to perform. I understand, but unlike you this site is not dedicated to piracy, it is in fact, dedicated to sensible ways in which artists can make a living despite the fact of piracy, whether yours or others. Why can’t you just carry on with letting people find ways for artists to get paid just because you don’t think they should be paid.

Loki says:

Re: Re: Re: Re:

and the guy that PAID the “artists” in that ad EXORBITANT dollars to sell out their soul and conscience (whatever was left of it).

Even if true, than it really makes him no different than UMG and the RIAA.

In fact, as far as I can tell, the whole reason this is an issue seems to be because UMG/RIAA apparently believe THEY already own they souls and conscience of the artists.

Mike Masnick (profile) says:

Re: Re: Re:2 Re:

and the guy that PAID the “artists” in that ad EXORBITANT dollars to sell out their soul and conscience (whatever was left of it).

Even if true, than it really makes him no different than UMG and the RIAA.

Actually, it makes him quite different, in that he actually pays artists exorbitant dollars. UMG and the RIAA try to avoid that.

Anonymous Coward says:

From the DMCA:

“MISREPRESENTATIONS- Any person who knowingly materially misrepresents under this section… that material or activity is infringing… shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer… as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”

Anonymous Coward says:

Re: Re:

One problem is that it’s incredibly hard to prove intent. The other problem is that even if intent is proven, the penalties are less than infringement penalties.

Three things need to change.

A: If the party requesting a takedown knew or should have known that the content is either not infringing (ie: it’s permissibly licensed, it’s public domain works, it’s fair use, etc…) or that the party has no standing to sue since they don’t hold the copy protections for it then they will be responsible.

B: The penalties against them for requesting a bogus takedown should substantially increase.

C: Infringement penalties need to substantially decrease.

(well, I can go on. Copy protection lengths need to be substantially decreased but that’s off topic).

Loki says:

Re: Re: Re:

One problem is that it’s incredibly hard to prove intent

No way. The RIAA/MPAA tell us it is exceedingly easy to identify infringing material (and they know what they are talking about). Since it is nigh impossible to “accidentally” infringe it is equally nigh impossible to “accidentally misidentify” infringing content. You KNOW it when you see it. Therefore any false copyright claim, must, by there own standards, be intentional.

Anonymous Coward says:

If a UMG copyright is involved in the TD notice, then there is little reason for persons here to “cry a river of tears”. If not, then obviously there would be a problem with the DMCA, which might rise to the level of sanctions.

Candidly, I suspect UMG may be looking over its contracts with these individuals for possible breaches of their terms.

As for MU, of course it is a useful tool, but one should not be blind to the fact that as of now the tool is being used for the most part to distribute works illegally. The far more pertinent questions as far as I am concerned is the extent to which MU is aware of this, tolerates it without enforcing its contractual conditions for site use, its use, if any, of technical measures to curb misuse of the site, etc.

Anonymous Coward says:

Re: Re:

As for MU, of course it is a useful tool, but one should not be blind to the fact that as of now the tool is being used for the most part to distribute works illegally.

Ah, at some point we were sure such a remark was going to pop up. “MU might be right here, but because they might facilitate infringement they must be wrong; no discussion necessary.”

Artists advocate a lot of less savoury behaviours with their songs. Let’s blame the artists instead for endorsing such behaviours.

Josh in CharlotteNC (profile) says:

Re: Re:

Candidly, I suspect UMG may be looking over its contracts with these individuals for possible breaches of their terms.

If one of the artists in the video violated their contract with UMG by creating something with another company, then the only legal option UMG has is to sue the artist for breach of contract, not issue false takedown notices to a third party about a video which they do not hold the copyright to.

out_of_the_blue says:

Shocker! -- I bet there are contract violations, though.

@ #7: “They want to protect the artists by denying them the right to infringe on their own works.” — IF under contract, they probably agreed to pretty much exactly that. Of course, the rapper type consider themselves “gangstas” and so not bound to honor contracts.

@ #11: Pasted in definition of “misrepresentation”: Pretty much means that the biggest potential cost of misrepresentation with DMCA is attorney’s fees, as the other costs won’t be more than peanuts, certainly in this instance.

Anonymous Coward says:

Re: Shocker! -- I bet there are contract violations, though.

what do the rappers under contract have to do with megas copyright on the recording?

UMG should be going after the artists who participated if they were contractually obligated not to perform in the video.

this is malicious harassment by UMG because mega and the artists made them look the fool

PaulT (profile) says:

Re: Shocker! -- I bet there are contract violations, though.

“IF under contract, they probably agreed to pretty much exactly that.”

Ah, an appropriate point, for once. Well done.

However, surely this means that it’s a contract dispute between the signers of that contract, not something that should affect the 3rd party being attacked?

Anonymous Coward says:

Re: Re: Shocker! -- I bet there are contract violations, though.

Paul, if any of the artists signed exclusive contracts, the label or publishing house by definition owns the copyright on any performance, even performances on other people’s recordings. It isn’t only a contract dispute between the label and the artist, but also creates problems for the third party because they have no rights to the performance (the artist could not assign the same exclusive rights twice).

So while there is a valid contract dispute between the artist and label, the third party recording is pretty much done without license, which makes it a violation of copyright, which makes it DMCA-able, which is what they appear to have done.

Let’s give an easier example to follow: A photographer signs on to work for a newspaper, and agrees to work for hire exclusively for them during that time frame. Then he shoots a bunch of pictures of a significant event, and rather than give them to the newspaper, and sells them to an agency for distribution. Now, the newspaper not only has a breach of contract issue with the photographer, but they also have issues with the agency. Specifically, the work for hire contract makes those photographs copyright to the newspaper, not the photographer (he signed away all rights for the contract time), and as such the photograher had no rights to sell the images – it would be a violation of the copyright held by the newspaper for his work for hire. So the newspaper has every right to serve the agency with a copyright violation notice, and have them take down all the images, etc.

It’s actually a pretty simple concept, once you get past someone trying to make the labels look bad.

PaulT (profile) says:

Re: Re: Re: Shocker! -- I bet there are contract violations, though.

“It isn’t only a contract dispute between the label and the artist, but also creates problems for the third party because they have no rights to the performance (the artist could not assign the same exclusive rights twice).”

Fair enough, so there’s actually 2 separate contract issues to sort out. If Megaupload paid the artists in good faith that their exclusive contract would be valid and not in violation of existing contracts, then the artists have violated both contracts. This does not assign any blame to Megaupload, and does not make them in knowing violation of any copyrights.

I’m no lawyer, but I would believe that Megaupload are on the same moral/legal ground as the labels here, at minimum.

“It’s actually a pretty simple concept, once you get past someone trying to make the labels look bad.”

No, it’s a messy and complicated situation once you factor that there may have been no prior knowledge that the contract between the artists and Megaupload was not enforceable. Could/should they have known the details of the artists’ contracts before entering into the new contract? If they weren’t, and the very content they produced themselves is in question, then how can the site be expected to accurately determine the copyright status of 3rd party works as you people keep insisting they should? Is it reasonable to use the DMCA’s takedown facility before a court has determined the status of the contracts, or are we to just take Universal’s word for it?

It’s actually quite simple to understand the issues being raised, if you stop trying to attack the site and/or Mike long enough to understand them. I’m not trying to make the labels “look bad”, so you can stop white knighting them now and address the actual issues. Either explain to me why I’m mistaken, or accept that this isn’t a simple situation and it raised a large number of important issues.

Anonymous Coward says:

Re: Re: Re: Shocker! -- I bet there are contract violations, though.

Given the entertainment industry has been trying to convince us that “content is real property” for ages now, let’s go with your analogy.

Someone gives me a newspaper that has pictures in it. The photographer who took the pictures has an exclusive contract with a rival newspaper (as per your example). A spokesman from the rival paper walks up to me and tells me the paper belongs to his employer because it uses photos for which his paper, via contracts, own the copyright, therefore the whole newspaper now belong to his employer and they say I am not allowed to read that paper and must turn it over to them.

Pretty much everyone on the planet is going to look at that person like they’re a raving lunatic.

If a musician has an “exclusive contract” with one party, and they do music for someone else, every single person I discussed this issue with (about 35-40) said they should be sued for breach of contract. Not one of them thought it was logical that party should simply be entitled to claim ownership of someone else work due to a breach of contract.

Here is a perfect example of why most people look at copyright today like it is a joke.

Anonymous Coward says:

Re: Re: Re: Shocker! -- I bet there are contract violations, though.

I have a contract with …. light

so from this day forward, I own the copyright on anything produced using light or produced while working in the light. Unless your content is produced in a darkroom using only night vision cameras, all your copyright are belong to me….

FYI – night vision cameras and darkrooms also include light (of a different shade/hue), so I own all of them also…

Nice one contract and I can own everything…..

Somehow it just isn’t this easy, regardless of what the shills would have you believe

Loki says:

Re: Shocker! -- I bet there are contract violations, though.

@ #7: “They want to protect the artists by denying them the right to infringe on their own works.” — IF under contract, they probably agreed to pretty much exactly that. Of course, the rapper type consider themselves “gangstas” and so not bound to honor contracts.

What? WHAT???

OK, let’s assume that at least one artist has it contractually stipulated they can’t “infringe” upon their own works. Fine. That would give the label right to pull any content those artist posted to the site if it infringed.

What those artist themselves may or may not be using the site for has nothing, NOTHING, to do with this video. I’ve quite easily listened to over half a million songs in the last 30 years. Nothing in that music made me go, “Oh, hey, that makes me thing of “songX”. None of the artist sing lyrics, they just say words/phrases like “upload” or “I use megaupload”.

And then the content industry wonders why people ignore copyright more and more.

In my head I see Lewis Black standing on a stage going (in typical rage rant mode):

“I read this and my brain goes ‘MY HEAD HURTS. MAKE IT STOP, MAKE IT FUCKING STOP.’ and then someone says copyright, and my brain shuts down”.

Anonymous Coward says:

Re: Punishment for false takedown?

I truly believe the “punishment” mentality should be discouraged, although it offers some emotional rewards it does not address real issues.

People making defective DMCA should at the very least pay for all the problems they caused, people issuing misleading DMCAs should respond criminally and be responsible for any damages others incur, assuming of course that those can be differentiated one from the other.

The DMCA should not exist is not a fair compromise, it is not even useful since those other people keep saying they need more protections, so it is out there for all to see that the DMCA failed in its intended purposes and it is creating problems elsewhere being used to censor other business that have nothing to do with “piracy” but their only crime is to have a “dishonest competitor” that is willing to use anything to stop others from entering the market.

Anonymous Coward says:

Re: Punishment for false takedown?

If I remember this right, the company issuing a DMCA takedown is pledging under oath that they own the copyrightable material. If they willfully lie in that pledge, isn’t that perjury? Doesn’t perjury lead to prison sentences?
It’ll be interesting to see corporate “people” in prison for five to ten years.

zcat (profile) says:

The standard “work for hire from hell” clause which lots of employees and university graduates will already be familiar with; anything you come up with that might be covered by copyright or patent is automatically owned by your employer or university.. and it doesn’t matter if you were on work time or not because subconsciously you might have been thinking about it on work time and hell they OWN you, you’re lucky to even have a job in the current environment so just shut up and get back in line, prole!

Bergman (profile) says:

Re: Re:

And for that matter, since copyright infringement is more than just illicit copying, and according to the MAFIAA, all infringement is theft, wouldn’t it follow that fraudulently asserting ownership of rights to someone else’s work (infringement) make the person making the fraudulent assertion dedicated to the theft of intellectual property for SOPA/PIPA purposes?

Anonymous Coward says:

There is a whole bunch of potential reasons here.

1) The artists may be signed to exclusive contracts that do not allow them to appear on other works without permission.

2) They used their own songs, which they have sold or contracts the rights to the labels, without permission. Just because they wrote or recorded the song doesn’t give them use of it without permission

3) The music used may not be the rights of the artists in question, and they used it without permission.

I suspect that the takedown is perfectly legal and sound. I suspect Megaupload people know this, and put the song out there intentionally to get this sort of reaction – so they could get this type of “supporting” post on sites like Techdirt. Don’t you feel like a sucker now Mike?

Anonymous Coward says:

Re: Re: Re:

Sorry, but:

1 is very valid, because an artist signed to an exclusive contract has given the copyrights to all of their performances to a label – and as such, the label would own the rights to the performance in this video, and would have a valid DMCA position.

2 is also potentially valid here, because some or all of the words, phrasing, etc maybe part of music that the artist already recorded and sold the rights to.

3 is the most likely, but it doesn’t kill the other two points off.

The Groove Tiger (profile) says:

Re: Re:

It’s funny how you twist a law to fit what your preconceived notion of what it should cover.

Hey, here’s a law that says no parking on the yellow line. Your car was taken and towed out of your garage and broken into… I suspect that it is perfectly legal and sound, because you know it says something completely different than what happened but since I hate you, it’s OK that your home got broken into and your car stolen. It’s THE LAW!

Anonymous Coward says:

We should thank Universal for showing everybody how SOPA and other laws of its kind will work.

It won’t be about illegal stuff, but a powerful censor tool, just like the DMCA today is being used, lets get the numbers on the DMCA and see how much piracy is stopped and how much business are target by bogus DMCA takedowns.

The Devil's Coachman (profile) says:

The management of UMG is widely known....

…….as a group of donkey-fellating trannies with a proclivity for coprophagia. When not engaged in those activities, they find the time to take down sites arbitrarily and capriciously, facilitated by the talents of their necrophiliac legal staff, also with other bizarre tendencies too numerous to list.

DogBreath says:

Let the suing begin...

Megaupload to Sue Universal, Joins Fight Against SOPA
December 12, 2011

“File-hosting service Megaupload has told TorrentFreak that it will sue Universal for wrongfully taking down its content from YouTube. Universal took action Friday to remove a Megaupload-produced pop video which featured leading artists singing the cyberlocker service?s praises. The move has also prompted the company to enter the SOPA debate, with a call for like-minded people to join forces and fight for an Internet without censorship.

Last Friday, file-hosting service Megaupload surprised the Internet by launching a campaign fronted by a Printz Board-produced song featuring some of the world?s most prominent recording artists.

Needless to say, the spectacle of P Diddy, Will.i.am, Alicia Keys, Kanye West, Snoop Dogg, Macy Gray, Chris Brown, The Game and Mary J Blige all declaring their love for Megaupload was too much for the IFPI and RIAA.

As the story began to spread and the Mega Song trended on Twitter, it was suddenly blocked by YouTube, a victim of Universal Music Group (UMG) and IFPI copyright takedowns.

What followed late Friday were demands from Mega founder Kim Dotcom for YouTube to reinstate the video (full details in our earlier article), and counters from Universal to take it down again. With the weekend over, the controversy is alive again.

?Let us be clear: Nothing in our song or the video belongs to Universal Music Group. We have signed agreements with all artists endorsing Megaupload,? Megaupload CEO David Robb told TorrentFreak this morning.

?Efforts to reach out to UMG and open a dialog about this abuse of the DMCA process were answered with unfounded and baseless legal threats and demands for an apology.?

Anonymous Coward says:

Re: Let the suing begin...

So, “You better be sorry, or I’m gonna sue your ass….” is what copyright lawyers have been reduced to….

Who knew that there would be a time when referring to a lawyer as an ‘Ambulance chaser’ would actually be a compliment…. anything to distance themselves from being a ‘copyright lawyer’…

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