YouTube Says Universal Had No ‘Right’ to Take Down Megaupload Video | Hacker News Reader

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

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152 pointspwg39 comments

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.

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.

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.

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.

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.

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?

Theoretically YouTube could kick them form their automatic filtering program for a period of time or put some other requirement on their continued use of it.

Let me be more specific: "Doesn't this bad faith on UMG's part have any bad consequences that aren't graciously bestowed by another large company?" I thought we were a nation of laws, not corporations? Is fraud only a business cost now?

> it's possible that UMG was acting, albeit with bad faith, in the capacity of YouTube curator.

This story is about Google, the owner of YouTube, saying that they were acting outside that capacity.

Would it matter if their contract stated that a "takedown" issued by UMG constitutes an implicit DMCA request? It seems plausible that Google could have worded it in that way.

“Say you sue me because you say my dog bit you,” he told the audience. “Well, now this is my defense: My dog doesn’t bite. And second, in the alternative, my dog was tied up that night. And third, I don’t believe you really got bit.” His final defense, he said, would be: “I don’t have a dog.”

http://www.abajournal.com/magazine/article/richard_racehorse...

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.

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.

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).

>"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-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_... 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.

>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.

I think I see where the misunderstanding came from here. I never meant to say that the DMCA explicitly said they have to provide a tool for ease of use, what I meant is that given the volume of requests they likely deal with the only economical option is to automate the process somehow. I don't agree with the decision, I don't know if I would make the same one, but given the volume and mandatory time-frame I don't think there are many other acceptable scenarios.

With regard to your anecdote, it sounds to me like the volume of take-down requests you deal with is manageable by a group of one or more people, I'm just saying I don't think throwing a group of people at the volume of requests YouTube gets would be enough to meet the safe-harbor time-frame and we both know they will do whatever it takes to get indemnity.

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.

"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

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?

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.

And merchant accounts - don't forget the kill switch for merchant accounts.

In which case it would appear to be an antitrust issue if there is a magic switch that only some rightsholders have access.

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.

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.

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.

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.

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.

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?

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...

AdBlock.

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.

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.

I sure hope UMG loses.

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.

Hypothetically speaking, just because you didn't catch a virus doesn't mean that that virus can't be incredibly effective (or "viral").

You are not statistically significant.

And yet you've heard more about MegaUpload in the last week than you ever have before.

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

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