There are still questions concerning the Tech News Today takedown issue. From the article:
UMG's response also sheds some light on another mystery: why Monday's issue of Tech News Today was yanked from YouTube. When UMG removes a video via YouTube's CMS, a "reference file" is created that "in theory is supposed to identify other instances of postings of the same content." UMG speculates that this "reference file" system was responsible for the accidental removal from YouTube of a Tech News Today episode featuring the Megaupload video.
Now, this is plausible why TNT was taken down the first time. TNT then issued a counter-complaint and was put back online shortly thereafter. Finally, it was removed AGAIN in accordance to the DMCA because (according to the speculation on how this works) UMG confirmed that the content in question which was originally removed did infringe.
UMG cannot hide behind the "accidental" TNT takedown if they personally confirmed it twice to be infringing.
Google is giving the labels way more power than they should. They automatically announce them of infringing content with ContentID, when it's not their obligation to do so under current copyright laws, and now this - allowing the labels to remove even content of their competitors.
What the hell are you doing Google? Google entering the music/movie business worries me, because it means they will give them more power over their other services like Google Search, Youtube, or the Android Market, and they really shouldn't. At least not if they ever want to use the "Do No Evil" line in public again.
Also, can UMG really make their own private DMCA under a contract with Google? Does that mean they could even take down domain names if they agreed to that under a contract with the DNS providers? I don't think the law is supposed to work like that, and hopefully the judge will recognize that.
> Google is giving the labels way more power than they should.
Should, by what standard?
Legally, under the DMCA, maybe Google has no obligation to provide this facility to UMG.
But as far as I can see, no-one is paying Google to host the content under debate on YouTube. That probably means Google has no contractual obligation to anyone to do so and is free to throw the content out any time they want for any reason they want, including any back-room agreement that might have been made with any big media firm.
If you want someone to do something important for you, and you're relying on free services on the Internet to do it, then you are typically entitled to a full money-back guarantee. Anything else comes with a price tag one way or another.
And what if I am a paying Google Apps Customer. Video through youtube is included in what I pay for. Should UMG have the right to control that as well?
That seems to be between you and Google. If paying for Google Apps doesn't result in having reliable video hosting, then Google's service may not be worth it. UMG's "rights" don't really come into it if this is a voluntary agreement between Google and UMG.
Interesting. Do you get something contractually guaranteed as a Googe Apps customer that is different to Joe Public uploading a video to YouTube? If so, are you able to link to exactly what your agreement says?
I think it would change the situation significantly if the organisation whose video was pulled in this case had actually been paying Google to host it for them on some sort of contractual basis, and the reason for Google's removal of the content was not a legal obligation but another private commercial deal.
This is what I was going for. Everyone claims you get what you pay for but it is important to remember that some users do pay for Google services. What is worrisome is how Goggles actions in this case would apply to those users.
Video -hosting- (and ancillary features) is included in what you pay for.
Access to other parties videos? Is not.
And the party you contracted with (Google) has contracts with other entities. Has nothing to do with "rights". If you have a problem with the contracts entered into, then act accordingly.
Maybe this is a trick to exploit the Streisand effect? It's in such close proximity to the SOPA hearings that I'm sure it will make waves regardless.
If you can find an image of what the page looked like when initially blocked, it said "removed by UMG", using the group's initials. In the past, videos have been blocked under the name "Universal Music Group". Why the alternate name? Maybe someone other than UMG intentionally triggered this. Either to bring attention to SOPA or MegaUpload itself.
If they can already do stuff like this, the damage done under SOPA in the next few years could be unimaginable. Now I really don't want SOPA to pass, even if it has 30 "improvements"/amendments. The content owners have clearly demonstrated us that they are not responsible enough to use such power over the Internet.
It confirms what I've been thinking that even though they talk high and mighty that they do care about having an equal partnership with Silicon Valley and they want to help innovation, and freedom of speech - those are just words. They really don't give a f*ck about anything else. They just want supreme power to take down anything they don't like at will.
Any new music oriented site or video site that don't pay them as much as they are getting now from their most lucrative businesses per unit of content, would be shut down at launch. Why bother with new business models that could be great for the consumer, but give you less revenue, when you can just maintain the status quo?
And no wonder the TV cable companies want SOPA, too. If they had it in the past Youtube wouldn't exist now, and they wouldn't have had to create Hulu, which has been mainly a painful experience for them, because they really just want people to keep watching TV. Hulu was just a reaction to Youtube.
> The content owners have clearly demonstrated us that they are not responsible enough to use such power over the Internet.
Just to play devil's advocate for a moment...
OK, let's agree that some of the actions taken by the legal departments at Big Media companies have been unjustified and that at least in the US the legal system does let them get away with too much.
On the other hand, what proportion of the people they go after following a hit by their automated scanning tools do you think actually were ripping them off in flagrant breach of copyright? 50%? 80%? 95%? And what proportion of content that they take down via automated notices really was infringing? Something even greater?
Sure, you can say "We don't know, statistics are made up on the spot", just as you can say "You can't prove that this person was actually controlling the computer that was confirmed to be distributing infringing copies of 300 different works over the course of an entire month at this IP address that is uniquely assigned to and paid for by them where the only wireless router on the network is secured like Fort Knox and the only computer physically present on the network is their personal machine". And sometimes, maybe there will even be some justification in the argument that creates doubt.
But this is mostly just lawyering of the worst kind. We all know that most of these people really are ripping off the illegal content just as they are accused of doing, and trying to weasel out of the consequences when they get caught. No-one really believes that these people are honestly sampling the material for free with the intention of immediately buying a legal copy of everything they like. No-one really believes that not a single illegal download represents a lost sale that would otherwise have been made.
Now, this is not to say that, from a practical point of view, it is in the interests of Big Media to stop this copying. The economics of copyright and media distribution is a fascinating subject, and one where we don't have all the answers and understand all the interacting effects yet. And a lot of the general public simply don't understand copyright anyway, nor realise that they are doing anything illegal, so there is an education vs. legislation question here too.
It is also not to say that (proposed) laws like SOPA are proportionate and fair.
But the law does grant exclusive rights to media content, which a significant proportion of the general public apparently feel free to trample on at will, certainly with a possibility that they are costing those media rightsholders a substantial amount of money. If we don't like this situation, we should restructure or remove the underlying copyright in law, not lead an uphill charge against heavy-handed enforcement of rights that have not been well protected by the more gentle approach taken so far.
We all know that most of these people really are ripping off the illegal content just as they are accused of doing, and trying to weasel out of the consequences when they get caught.
And this is precisely the way our legal system is designed to work. Underlying it is the idea that it's better for 100 people to go unpunished, then to have used the state's monopoly on force to injure one innocent person. It's through this philosophy that we can all sleep at night, without guilt from the blood of innocents on our hands.
Of course, this is all a tangent, if the bit about this being a contractual arrangement between Google and UMG.
But if that's true, then UMG's argument that the court doesn't have authority under DMCA to impose an injunction is a red herring. If this is a straight matter of consumer and contract law between Google and UMG, and Google's users, then the judge may very well be able to intervene (depending on the details of those relationships).
> And this is precisely the way our legal system is designed to work. Underlying it is the idea that it's better for 100 people to go unpunished, then to have used the state's monopoly on force to injure one innocent person.
It's not really that simple, though, is it? Different kinds of law require a different burden of proof to be met before the legal system will punish or compensate.
In criminal cases, the standard in many places is "beyond reasonable doubt" or something roughly equivalent. This echoes the sentiment you described.
However, in civil cases, where we are talking about damages being assessed if and only if the case is lost, the burden is typically much lower, often something resembling "on the balance of probabilities".
And on the balance of probabilities, anyone trying to weasel their way out of being punished for infringing copyright who has no case stronger than the form arguments I mentioned before is guilty as sin.
Maybe I'm reading too much into your previous statement. But what I got out of it was the idea that because in aggregate so much of the activity is infringing, that it would make moral sense to shut down everything. I don't think it's correct to use the standards of proof necessary in individual cases to draw conclusions about entire classes of people.
(and let me apologize in advance if I was indeed finding meanings that you hadn't intended)
I understand that, but there seems to be some doubt about whether they legally compelled YouTube to take it down or simply asked nicely via some pre-arranged deal with Google. If it's the latter, then perhaps any secondary criticism should be directed at Google for entering into such an agreement rather than at a legal system that wasn't used here anyway.
I think my general point is that while SOPA is obviously a crazy idea and Big Media obviously do go too far at times, we should be careful to choose the focus of our criticism correctly.
Although I agree with your statements concerning matters of which you describe, such as people downloading music illegally, this is not what the discussion is about.
The reason they clearly demonstrate they are not responsible enough to have such power over the internet is because this is a case of a content creator removing content they do not own. It does not matter the reasoning behind it, whether it be DMCA or private agreement with Google.
Going after people for illegal downloading their property is one thing, automatically removing content they don't like is another.
Plus, they have the lousy reasoning behind the whole thing anyway, "we're protected by the DMCA even though we admit this has nothing to do with the DMCA".
Which, I'm uncomfortable with the whole notion of content creators being involved in this in the first place. If the actions being taken by people are "illegal" then the private company should be reporting it to the proper authorities who have the, well, authority to do something about it. But then again, lately the people with authority have shown they are just as incompetent in handling these matters as well.
Oh, I totally agree that the law needs to change. Copyright has been distorted from its original purpose, and until it's restored to a more reasonable balance it will never command popular respect.
However, I can't help wondering where all these well-funded anti-SOPA lobbyists are when it comes to proposing changing the underlying system, rather than the half-baked non-solution of campaigning to prevent current legal rights from being effectively enforced. Something is backwards in this whole debate.
SOPA is so far out there that companies that wouldn't normally be worrying about lobbying/campaigning are forced to, because to just wait for SOPA to pass would be suicide.
I also am not a lawyer, but it would be a big stretch for this to constitute tortious interference. Tortious interference requires that someone force (or at least strongly persuade) one of the parties involved to breach a contract.
Here it is hard to argue that Google has breached a contract with anyone. Its use agreements tend to give it the right to remove a video for any reason or no reason at all.
I should have been more clear, I meant tortious interference of the business relationship variety (a la restraint of / interference with trade) rather than the contractual variety.
Except that when the video gets taken down YouTube says it was on copyright grounds, not only that but when you get such a takedown letter it specifically mentions the DMCA (or at least in the one case a client of mine received such a letter due to using a 30 second clip from a song as background music) and your rights associated with the DMCA including the ability to state that it is fair use.
If YouTube did agree to letting UMG basically control content uploaded to YouTube they have basically given them the ability to silence any and all opposition to UMG on YouTube with the single click of a button.
But which should also open up UMG and / or YouTube to the restraining order which MegaUpload have asked for. If the takedown wasn't anything to do with the DMCA, then they can't invoke DMCA rules governing penalties for abuse of the takedown system.
So, far as I can see as a non-lawyer, UMG are in trouble either way. If it's a DMCA request then they've perjured themselves because they don't own the content. If it's not a DMCA request then they're open to standard civil court provisions and restraining orders, and will likely get sued for restraint of trade or similar.
Yeah, I wasn't questioning that. I was simply stating it, one because I find it hard to believe that YouTube would sign such an agreement and second because it means an corporation can censor what they deem to be damaging for them.
I wonder why youtube would sign an agreement like that at all
Most likely, this could be a settlement that gives UMG and the likes a great latitude at taking down videos, and Youtube a guarantee not to get sued or some other rights.
On the other hand, if this kind of practice (let me stop whatever content I want or I'll sue you on unrelated matters) became widespread, this could have a really nasty effect on free speech rights.
That's why I said "in theory". If there is an argument that YouTube would be liable for damages, following the rules of the DMCA would have given them immunity. By not following those rules, they lose that immunity.
I would guess that the additional take down rights were in exchange for VEVO posting the official music videos on Youtube. The videos would increase traffic to Youtube, but the company would obviously want significant benefits for posting their protected content in a public area.
Shopping malls are an exception to the rule. In California, the courts recognize big malls as the modern-day "functional equivalent" of a traditional public gathering place, because they have "common areas that would invite the public to meet, congregate, or engage in other activities typical of a public forum. . . ."
The California Constitution does protect your free-speech rights in privately owned shopping centers—as long as your activity doesn’t interfere with the primary commercial purpose of the mall.
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I don't think it's crazy to imagine that a web space that's universally used for people to sound off, and to post comments on others' contributions, could become recognized as a public space for First Amendment purposes. (IANAL)
The problem with that kind of contract is that it means YouTube can't take advantage of the DMCA provision which limits their liability to uploaders. You're right, it is interesting. Ball's in YouTube's court.
I wonder why youtube would sign an agreement like that at all..
I'm guessing penalties for hosting copyrighted content are so severe they're trying to establish a legal trail to show they made every effort to comply with the law.
"You can't place a restraining order because that's not in the DMCA!"
--
"The takedown wasn't a DMCA related takedown."
Am I missing something here? Are courts really so blind to the major label's bullying games that this wasn't IMMEDIATELY approved and an injunction placed until further proceedings?
I mean, no I'm not a lawyer but I have studied contract law and these just seems moronic.
Yup don't get it at all. Unfortunately, the thing that would probably happen is their first point would get ignored and the second point would be investigated. (Even though it does throw a subjective shadow over the whole thing...)
There's some speculation on the Ars forum that if UMG aren't just making this up, their contract with Google could call into question YouTube's status as a primarily user-generated content-based site, and perhaps render them ineligible for DMCA safe harbor protection.
I just read some of DMCA Title II/OCILLA, and although it's mostly over my head, I'm not sure if I see how signing a contract with UMG allowing them to issue non-DMCA takedowns at will puts YouTube in breach of the safe harbor requirements.
anti-competitive how? MegaUpload might be competing for 'hearts and minds' with their campaign, but I hardly think that it's possible to have a legally recognized monopoly on them.
You don't need to have a monopoly to be anti-competetive. Having the power to take down content that doesn't belong to you, on the worlds largest video sharing site because you disapprove of it - does constitute anti-competetive behavior on UMGs part.
All these claims are coming from UMG. I am cynical of most things the major media companies say w.r.t. copyright & internet based on their poor track record. So I would not put it past them to be exadurating the truth here.
This is pure speculation, but I would imagine this song is getting a lot more publicity because of UMG's attempts to remove it. I certainly doubt that I would have ever come across it without reading about the fight on countless blogs.
Here is my speculation about what really happened: YouTube has its infringing content tool designed to detect copyrighted content and notify the rights holder. That tool erroneously flagged the Megaupload video as being owned by UMG. UMG just does what it always does when it receives a notification of infringing content: it pressed the button to take it down. Now, UMG is saying the agreement it has with youtube is that if its youtube tool flags a video as infringing, then it is ok to take down the video, even if the identification was erroneous.
UMG will probably have to argue that MegaUpload is a criminal organisation that distributions disproportionately high infringing content, therefore, them producing essentially an advertisement that tells people about MegaUpload amounts to linking to infringing content. Under this circumstances, DMCA provisions apply because it is a method of circumventing copy protection.
In the end, this is not a battle over free speech. It is a battle by several private interests - YouTube, UMG and MegaUpload over content rights.
UMG's response also sheds some light on another mystery: why Monday's issue of Tech News Today was yanked from YouTube. When UMG removes a video via YouTube's CMS, a "reference file" is created that "in theory is supposed to identify other instances of postings of the same content." UMG speculates that this "reference file" system was responsible for the accidental removal from YouTube of a Tech News Today episode featuring the Megaupload video.
Now, this is plausible why TNT was taken down the first time. TNT then issued a counter-complaint and was put back online shortly thereafter. Finally, it was removed AGAIN in accordance to the DMCA because (according to the speculation on how this works) UMG confirmed that the content in question which was originally removed did infringe.
UMG cannot hide behind the "accidental" TNT takedown if they personally confirmed it twice to be infringing.