Did YouTube Give Universal Music a Universal Veto?

December 16, 2011 , ,

It is likely that even MegaUpload did not anticipate the madness it would unleash when it released a video of major artists (and hangers-on) endorsing the site set to the beat of a wildly catchy song.  Of all of the questions raised in the video’s aftermath, those flowing from Universal Music Group’s (UMG) legal filing take the cake (for now).

For those of you late to this particular party, a brief history.  MegaUpload is an online “cyber locker” service that makes it easy for people to share files that are too big or cumbersome to distribute via other means like email.  For the past year or so rightsholders have been painting these services as piracy havens.  At least partially in response to these criticisms, last week MegaUpload released a video with recording artists talking up how useful MegaUpload is to them.  Shortly thereafter the video disappeared from YouTube, apparently at the request of UMG.  Claiming an abuse of the DMCA process (it is highly unlikely that UMG actually owned any of the copyrights involved in the videos), MegaUpload asked a court for an injunction against UMG.

Late last night UMG responded.  They essentially claimed that 1) there are no injunctions available for the type of DMCA process abuse that MegaUpload is claiming in this case, and 2) even if there were it does not matter because the videos were not taken down as part of the DMCA process. This second claim is particularly alarming.

UMG claims that the videos were taken down pursuant to unnamed “contractually specified criteria that are not limited to the infringements of copyrights owned or controlled by UMG.”  In other words, UMG is claiming that they have some sort of side deal with YouTube that allows them to take down videos that they may not even own in some cases.  That means that YouTube has essentially given UMG the keys to the kingdom – and for what?

The second alarming element is how this power seems to have interacted with another video that was sucked into the story.  Earlier this week an episode of Tech News Today was also pulled from YouTube.  Tech News Today is a news program, and it used a brief clip of the MegaUpload video in a video reporting on the controversy.  UMG claims that when it uses its contractual veto over YouTube content, YouTube creates a reference file to prevent the video being uploaded again.  Apparently, this system is designed in a way that even using a brief clip corresponding to the reference file in a much longer video will automatically result in the longer file being removed.

At this point, we really need more information.  YouTube and Google need to answer at least two basic questions:

  1. What are the unnamed “contractually specified criteria that are not limited to the infringements of copyrights owned or controlled by UMG” that allow UMG to pull videos from YouTube?  Why was UMG granted this right?
  2. Why has the reference file system been designed to block even small clips in larger videos?  Such videos would seem to have a higher than average likelihood of incorporating the clips for the types of commentary and criticism that fair use is designed to protect.

If this is true, then the fault for the takedown falls on YouTube. If they are not under a legal obligation to remove the videos, then they are removing them under some agreement that they themselves negotiated with UMG.  Giving any person or entity the unilateral power to silence speech it does not like will almost always end poorly.  YouTube needs to justify why it has extended this right to UMG, and explain who else holds a YouTube veto.