UMG, MegaUpload Case Gets Even Stranger; Will.i.am Says He Didn't Authorize A Takedown

from the so-what's-going-on dept

Things keep getting stranger with the legal dispute over the whole Megaupload song. As you may remember, Megaupload hired a bunch of celebrities to say nice things about Megaupload, which the company turned into a song and video. Universal Music flipped its lid and issued a takedown, claiming that there was a performance from singer Gin Wigmore, which they held the copyright on. MegaUpload then sued Universal Music. At the same time, singer will.i.am’s lawyer claimed that will.i.am sent a takedown also, saying that the singer had never agreed to the project.

Almost none of this made sense. We’d heard from various sources that Wigmore doesn’t even appear in the video at all and had nothing to do with the song. Furthermore, the will.i.am stuff was really confusing. First of all, if he hadn’t agreed to this, why did he say things about how wonderful MegaUpload is on video? He must have agreed to do that. Second, even if he didn’t agree to it, at best there’s a contractual claim there and/or a publicity rights claim. There’s simply no copyright claim. His words are not his to copyright, as they’re not fixed in any medium. Whoever made the video would hold the copyright — which, in this case, is MegaUpload. Even more ridiculous was the notion, floated by some in our comments, that will.i.am’s contract with Universal grants them automatic copyright, which is why UMG could issue a takedown. Again, this makes no sense for a variety of reasons. First, the same reason as above, without the works being fixed, there’s no copyright in those words for will.i.am to assign to Universal. Second, UMG can’t claim copyright on everything someone says. Third, even if this preposterous claim was true, will.i.am still would have no right to send a takedown, because he wouldn’t own the copyright either. UMG would.

MegaUpload, has now hit back. It notes that Gin Wigmore does not appear in the song, did not write the song, and has absolutely nothing to do with the song. The company had apparently spoken to her about participating, but eventually went with Macy Gray instead. So the claim that this is under UMG copyright because of Wigmore doesn’t appear to be true. Furthermore, MegaUpload provided the contract signed by will.i.am (embedded below), allowing them to make use of his words… the company’s boss claims that will.i.am personally insists that he did not authorize a takedown. That raises questions about whether or not will.i.am’s lawyer was confused or if he was just acting on his own.

“On December 12, 2011, I spoke directly with will.i.am about this issue, and he personally advised me that he absolutely had not authorized the submission of any takedown notice on his behalf.”

In the meantime, it looks like the judge is skeptical. Judge Claudia Wilken has given UMG until the end of the day to respond and explain the takedown…

Either way, this is going to remain quite the fascinating case to watch.

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Companies: megaupload, riaa, universal music

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Comments on “UMG, MegaUpload Case Gets Even Stranger; Will.i.am Says He Didn't Authorize A Takedown”

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46 Comments
Anonymous Coward says:

Re: Re: Re: Re:

Capitol Hill is an abberation on the cultural landscape…

If some ambitious general someday decided to take command on Capitol Hill, and ordered his troops to take all 535 senators and represenatives, slam them up against the wall and shoot them…

… well, I would be shocked. That hasn’t ever happened in America before. Well, North America. North of the Rio Grande.

But I wouldn’t say that this bunch doesn’t deserve it. ???? Viva la…

Anonymous Coward says:

This case will, for a relatively small legal fee and probably minimal damages for Universal, establish a very public appearance that those who abuse takedown provisions of laws such as the DMCA and SOPA will be punished, even though the overwhelming majority of of defendants would not have the resources to fight back in this situation. While SOPA very well may be put on hold this congressional session, come next year any senator and lobbyist will be able to cite this case as proof that the take down provision won’t be abused.

Someantimalwareguy (profile) says:

Re: Re:

This case will, for a relatively small legal fee and probably minimal damages for Universal, …

A “small fee” will just be absorbed as one of the costs of doing business, like campaign br****…erm contributions. the penalty for a verified case of abuse must be so huge that no one will ever try it again…

Someantimalwareguy (profile) says:

Re: Re: Re: Re:

The first instance – get the benefit of the doubt

The next instance – get the benefit of an enormous fine and the revocation of the right to file any further DMCA take-down notices for at least 1 year.

Still abusing after 1 & 2 – get the benefit of a wrecking ball with forced divestiture of all holdings to competitors who have been proven not to have abused the DMCA for at least 5 years.

That should scare the bejesus out of any company planning to issue casual or unverified take downs, increase the work force by having to hire an army of researchers and verification staff, and place the onus of proof right back where it belongs – with the accuser, not the accused…

Just a thought…

ltlw0lf (profile) says:

Re: Re: Re:2 Re:

Still abusing after 1 & 2 – get the benefit of a wrecking ball with forced divestiture of all holdings to competitors who have been proven not to have abused the DMCA for at least 5 years.

Why give them to competitors? Give them to whom they really belong to, the people. All divestitures should go to the public domain, where they belong.

The problem is that the copyright maximalists despise the public domain far more than they despise pirates — but this is why the founding fathers allowed copyright to exist in the first place, because they knew what most of us (except the copyright maximalists,) knew, that all ideas come from the society/culture in which they were created, and thus belong to that society/culture, and copyright only is there to give the author who fixed that idea to medium the opportunity to, for a limited period of time, obtain wealth in exchange for fixing that idea to medium. If you don’t want your ideas in the public domain, keep them to yourself (but realize that others may eventually think up the same thing.)

Anonymous Coward says:

Re: Re: Re:3 Re:

Why would his UMG contract not be an issue?

The Copyright Act of 1976 provides that copyright ownership “vests initially in the author or authors of the work.” 17 U.S.C. 201(a). As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.

????????????Community for Creative Non-Violence v Reid (1989)

G Thompson (profile) says:

Re: Re: Re: Re:

Maybe it’s because Mega can and the artist, who’s solicitor it seems is doing things the client has not asked for, has advised him to stay quiet.

Though the real question is what is the actual solicitor for the artist going to say to the artist about why he submitted a takedown without authority, without advising his client he was going to do so, and just exactly whom is the solicitor actually beholden too as a client? These and other questions could be a answered very nicely in an ethical review board and if the solicitor is embarking on matters that he has taken upon himself or at the behest of a third party (UMG for example) then debarment could be an appropriate punishment.

Whether Mega talks about the artist or not is irrelevant, and Mega has no legal or any other reason why they shouldn’t talk about matters they have full knowledge on.

Anonymous Coward says:

Re: Re: Re: Re:

Wait a minute, I could have sworn that the artists were actually ‘speaking’ in the video about Mega.

You’re claiming that Mega took the artists ‘image’ and made them say the things they said in the video? Kind of used them like little ‘sock puppets’?

That must be what Universal is really upset about, someone else playing with their toys…

Violated (profile) says:

Justice

My main hope in this case is that Judge Claudia Wilken makes a strong ruling that can be used against anyone looking to falsely sabotage a rival’s advertising campaign. This is obviously a very serious matter that can affect all commercial business operations and such anti-competitive actions should be strictly punished.

I would hope for a ruling as well on falsely censoring news reports but I doubt we will be that lucky.

Anonymous Coward says:

Re: Re: Re: Justice

No, actually I find that statement to be quite believable. We’ve watched a number of judges make extremely questionable decisions over the years. See East Texas patent suits. However, it appears -this- judge may actually have a real head on her shoulders instead of just a stuffed sock. We’ll have to wait and see.

Anonymous Coward says:

UMG's actions are even worse

According to Ars Technica, they even issued a DMCA takedown against an episode of a daily news show that had a brief clip of the MegaUpload video in a news segment reporting on the video and the case.

I wouldn’t be opposed to piercing the corporate veil and issuing criminal sanctions for this one.

Anonymous Coward says:

Re: UMG's actions are even worse

According to Ars Technica, they even issued a DMCA takedown against an episode of a daily news show…

Slashdot has also picked up this story. They have a link to Tom Merrit’s own account of the takedown. He writes:

Some of you may have heard of the Megaupload video which Universal Music Group has had removed from YouTube.?.?.?

On Tech News Today we exercised our fair use rights to comment on the story by playing some of the video. Our episode has now been removed from YouTube at UMG’s request.

Even if UMG does have a copyright issue in the Megaupload video, they do not have the right to silence commentary on their actions.?.?.?.

Anonymous Coward says:

Confidentiality

OK, this just bugged me. The terms in the contract state that they shall be kept confidential, and that disclosing the terms may cause MegaUpload irreperable injury.

HOW? How could disclosing the terms of this agreement – which is one page long and doesn’t seem to reveal any company secrets – cause irreperable injury?

Obviously, disclosing them causes MegaUpload no injury at all – in fact, they decided to disclose those terms themselves.

And THIS is why I hate lawyers. They put random clauses like this into contracts for no good reason.

… And wait a minute. There’s a waiver specifically for *wrongful death* in there? Exactly why and how do these guys think this video was potentially lethal?

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