Last week, the file-distribution site Megaupload launched a $3 million music video. It features the likes of Kanye West, Snoop Dogg, Kim Kardashian, and many others offering testimonials to Megaupload, set to a moderately catchy tune. It’s safe to say that music companies were not happy: they’ve been saying for months that Megaupload and other “cyberlockers” are blatant infringers making a mockery of copyright law. So when the video hit YouTube, UMG issued a takedown notice, and the Megaupload song promptly disappeared from YouTube.
Megaupload hit back, hard. It claimed that it owned all the copyrights in the song and video, and had the signed releases from the featured artists to prove it. That made UMG’s takedown notice baseless, so Megaupload filed a counter-notice with YouTube — and also a federal lawsuit. It relied on section 512(f) of the DMCA, which imposes damages on anyone “who knowingly materially misrepresents” that content taken down is infringing.
Universal just filed a response, which is both fascinating and unsettling. It doesn’t argue that the video is infringing or that the takedown was justified. Instead, it raises a variety of wholly procedural arguments. Of those arguments, the most fascinating and most unsettling is UMG’s claim that it can’t be liable for sending a false DMCA notice, because it never sent a DMCA notice at all. As UMG explains:
The UMG-YouTube agreement grants UMG rights to effect the removal of user-posted videos through YouTube’s Content Management System (“CMS”), based on a number of contractually specified criteria that are not limited to the infringements of copyrights owned or controlled by UMG. Dotcom speculates in his declaration that Universal must have sent a so-called “DMCA notification form,” such as the one he printed and attached at Ex. E to his declaration, to YouTube. But UMG (which interacts with YouTube) does not use that form when requesting the removal of material pursuant to UMG’s contract with YouTube. UMG uses YouTube’s automated CMS system.
Think about the implications of this position. It gives copyright owners free bites at any apples they like. They’re free to tell YouTube to take down any videos they like, even when there’s absolutely no basis in copyright law for the takedown, and they know there isn’t one. Instead of facing only the weak remedies of 512(f) (under which the courts have exonerated copyright owners who sent takedowns based on a genuine but unreasonable belief of infringement), they face no legal remedies at all. They’re playing poker without an ante: they can quietly fold whenever their bluff is called, and be none the poorer. In other words, in UMG’s view, YouTube’s CMS allows copyright owners to opt out of the parts of the DMCA they don’t like, while retaining all the benefits of the parts they do like. So much for the copyright “balance.”
But here’s the thing. YouTube has its CMS in the first place because of the relentless pressure of copyright owners. They complained that searching for infringing videos, one by one, and sending individual takedown notices, one by one, was too much work. Indeed, some of them sued YouTube, claiming that it was facilitating infringement. YouTube’s response was the CMS, and the litigious-copyright-owner consensus seems to be that some similar system is a necessary condition of compliance with the DMCA. That is: you implement an automated infringement-detection-and-notification system, or you’re liable for your users’ infringements. If that’s the test, then no user-generated-content site can long afford to be without one.
Irony abounds. Copyright owners have used the DMCA itself to press for a system that shields them from the only legal risks they could face under the DMCA. This may be only a side effect of their main goal — forcing sites to self-censor — but it is surely a welcome one for them. For those who believe that copyright owners have the limited exclusive rights given them by law and no more, not so much.
I look forward to seeing Google’s reaction to all of this. Ars Technica plans to ask Google for a copy of its content-owner terms of service, which could shed some light on whether the CMS really does opt out of 512(f). And if the judge ends up holding that a YouTube takedown notice is not a DMCA takedown notice, then Google’s should amend the terms (and if necessary the system itself) to make clear that it is. With great takedown power must come at least minimal responsibility.
Keep this in mind as you watch the continuing House markup of SOPA today, and shudder.
UPDATE: Mike Masnick at TechDirt has a fascinating and quite plausible suggestion that UMG’s claimed right to pull the video comes from its Vevo agreement with Google.
UPDATE: Timothy Lee at Ars Technica got a more detailed quote from YouTube:
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.