Tuesday 13 December 2011, 11:28 | By

MegaUpload sues Universal over YouTube takedown

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MegaUpload yesterday launched legal proceedings against Universal Music alleging that the music major abused the takedown system set out in the US’s Digital Millennium Copyright Act to force content the tech company owns off YouTube.

As previously reported, the bit of content at the heart of this dispute is a rather cheesey all-star song featuring Kanye West, Diddy, Snoop Dogg, Will.i.am, Alicia Keys, Lil Jon, Chris Brown and Jamie Foxx, among others, all advocating the use of MegaUpload as a tool for distributing large digital files over the internet. That so many stars would agree to feature in the song was interesting given that the big music and movie companies see sites like MegaUpload, and its rival RapidShare, as a new kind of file-sharing platform that aid rampant online piracy.

The all-star song appeared with an accompanying video on YouTube late last week, but then disappeared, being replaced with a notice saying that Universal had ordered the video be removed on copyright grounds. YouTube, of course, operates a takedown system based on US copyright law, removing content quickly if a third party claims an uploaded video infringes their rights.

MegaUpload founder Kim Schmitz – aka Kim Dotcom – reacted angrily to Universal’s copyright action, insisting to Torrentfreak that his company owned all the copyrights in the video and song, and that all participating artists had signed contracts giving his firm permission to use their contribution. He told Torrentfreak: “Those UMG criminals. They are sending illegitimate takedown notices for content they don’t own. [It's] dirty tricks in an effort to stop our massively successful viral campaign”.

Yesterday it emerged that MegaUpload planned to sue Universal for misuse of the DMCA takedown system. Such a case would not be unprecedented, though would provide a high profile legal action of particular interest to those in both the tech and creative communities who believe big rights owners are routinely abusing the content takedown system provided by US law and operated by sites like YouTube.

Critics claim that the big record companies and movie studios increasingly issue wide-ranging takedown notices, sometimes including content they don’t actually own, or against user-uploaded videos where fair use arguably applies, knowing that those user-upload sites that have licensing deals with the big content owners – like YouTube – will err on the side of caution and remove disputed content no questions asked.

However, Universal Music yesterday told Billboard that it issued the takedown request over the MegaUpload song not because of a straight copyright claim, but because one of the company’s artists who appears in the video, Island Records-signed Gin Wigmore, says she did not give permission for her contribution to be used. The major added that it was aware other artists who feature in the video had raised similar concerns, and Billboard subsequently reported that lawyers representing Will.i.am had issued their own takedown request relating to the MegaUpload promo.

Any artist currently working under a conventional record contract will be barred from making sound recordings for third parties without their label’s consent, and doing so would put them in breach of contract. Such artists would usually therefore be very careful about signing any other agreements regarding participation in a recording project without consulting their label, or at least their lawyers.

Some of the artists who appear in the MegaUpload video do so only briefly providing voxpop style testimonials for the website. It is possible that those artists did not realise their contributions would then be mixed into a cheesy song, making a simple stand alone product endorsement a line in a sound recording, and putting them in breach of their record contracts. Who is in the wrong their would depend on the wording of the written agreements MegaUpload insists it has from all participating artists.

Though a legal rep for MegaUpload insists that all participating acts knew how their contributions would be used. Attorney Ira Rothken told Billboard: “UMG didn’t do proper due diligence before sending the takedown notice … and each of the other artists, including Will.I.Am, signed a broad written agreement allowing the use of their likeness and their statements in the context of the video”.

Of course even with such disputes occuring, there’s an argument that Universal should not have used copyright law to have the video removed from YouTube, though we don’t know the exact wording of the company’s submission to the video site, and how much it relied on DMCA rules and how much on YouTube terms. Certainly if this case was to go to court, it would not be a straight forward action regarding to blatant misuse of the DMCA takedown system, and would therefore likely deliver little clarity of what constitutes more general misuse, and the obligations on rights owners to ensure misuse does not occur.

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