UMG, MegaUpload Case Gets Even Stranger; Will.i.am Says He Didn't Authorize A Takedown

from the so-what's-going-on dept

Thu, Dec 15th 2011 11:13am — Mike Masnick

Things keep getting stranger with the legal dispute over the whole Megaupload song. As you may remember, Megaupload hired a bunch of celebrities to say nice things about Megaupload, which the company turned into a song and video. Universal Music flipped its lid and issued a takedown, claiming that there was a performance from singer Gin Wigmore, which they held the copyright on. MegaUpload then sued Universal Music. At the same time, singer will.i.am's lawyer claimed that will.i.am sent a takedown also, saying that the singer had never agreed to the project.

Almost none of this made sense. We'd heard from various sources that Wigmore doesn't even appear in the video at all and had nothing to do with the song. Furthermore, the will.i.am stuff was really confusing. First of all, if he hadn't agreed to this, why did he say things about how wonderful MegaUpload is on video? He must have agreed to do that. Second, even if he didn't agree to it, at best there's a contractual claim there and/or a publicity rights claim. There's simply no copyright claim. His words are not his to copyright, as they're not fixed in any medium. Whoever made the video would hold the copyright -- which, in this case, is MegaUpload. Even more ridiculous was the notion, floated by some in our comments, that will.i.am's contract with Universal grants them automatic copyright, which is why UMG could issue a takedown. Again, this makes no sense for a variety of reasons. First, the same reason as above, without the works being fixed, there's no copyright in those words for will.i.am to assign to Universal. Second, UMG can't claim copyright on everything someone says. Third, even if this preposterous claim was true, will.i.am still would have no right to send a takedown, because he wouldn't own the copyright either. UMG would.

MegaUpload, has now hit back. It notes that Gin Wigmore does not appear in the song, did not write the song, and has absolutely nothing to do with the song. The company had apparently spoken to her about participating, but eventually went with Macy Gray instead. So the claim that this is under UMG copyright because of Wigmore doesn't appear to be true. Furthermore, MegaUpload provided the contract signed by will.i.am (embedded below), allowing them to make use of his words... the company's boss claims that will.i.am personally insists that he did not authorize a takedown. That raises questions about whether or not will.i.am's lawyer was confused or if he was just acting on his own.

"On December 12, 2011, I spoke directly with will.i.am about this issue, and he personally advised me that he absolutely had not authorized the submission of any takedown notice on his behalf."

In the meantime, it looks like the judge is skeptical. Judge Claudia Wilken has given UMG until the end of the day to respond and explain the takedown...

Either way, this is going to remain quite the fascinating case to watch.

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Filed Under: copyright, dmca, takedowns, video, will.i.am
Companies: megaupload, riaa, universal music

46 Comments

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Jeff (profile), 15 Dec 2011 @ 10:33am

..and yet supporters of SOPA will continue to say that it can't be abused.
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Anonymous Coward, 15 Dec 2011 @ 11:20am

Re:
Well of course it can't be abused. Things like this are the intended use.
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Anonymous Coward, 15 Dec 2011 @ 11:21am

Re:
Let us hope for a real March on the Cancer called Washington.
And also a true boycott of all things MAFIAA
I am very angry and disgusted at the corruption that has allowed this bullkrap.
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Anonymous Coward, 15 Dec 2011 @ 11:23am

This case will, for a relatively small legal fee and probably minimal damages for Universal, establish a very public appearance that those who abuse takedown provisions of laws such as the DMCA and SOPA will be punished, even though the overwhelming majority of of defendants would not have the resources to fight back in this situation. While SOPA very well may be put on hold this congressional session, come next year any senator and lobbyist will be able to cite this case as proof that the take down provision won't be abused.
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Anonymous Coward, 15 Dec 2011 @ 11:23am

Life is going to be harder on the trolls this time around. I think every strained, hypothetical argument they tried to come up with in the last post on this topic has been shot down in flames.

I am guessing that the trolls will be reduced to "Pirate Mikey" and "Mikey's mom wears army boots" on this one.
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Anonymous Coward, 15 Dec 2011 @ 11:25am

Umm, I have to wonder why this comes through Mega and not direct from the artist himself. Why are they speaking for him?
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fogbugzd (profile), 15 Dec 2011 @ 11:26am

Re:
Don't forget "Citation needed." That seems to be the latest troll favorite when they can't come up with a substantive argument.
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Someantimalwareguy (profile), 15 Dec 2011 @ 11:30am

Re:
This case will, for a relatively small legal fee and probably minimal damages for Universal, ...
A "small fee" will just be absorbed as one of the costs of doing business, like campaign br****...erm contributions. the penalty for a verified case of abuse must be so huge that no one will ever try it again...
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Anonymous Coward, 15 Dec 2011 @ 11:36am

Re: Re:
...the penalty for a verified case of abuse must be so huge that no one will ever try it again...

You mean like the penalty levied against Universal in the �Dancing Baby� case, Lenz v Universal ?

How about it's just that Universal is serial, unapologetic DMCA abuser. Plus they're evil. And mean.
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DannyB (profile), 15 Dec 2011 @ 11:40am

End of the Wild West days of DMCA abuse
The Wild West days of DMCA abuse are coming to an end.
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Richard (profile), 15 Dec 2011 @ 11:43am

Re:
Well done - you thought of an angle we didn't anticipate - not that it has any real weight mind you.
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Anonymous Coward, 15 Dec 2011 @ 11:56am

Re:
Likewise, it's interesting to note that the takedown didn't come from the artist himself, and instead from UMG... Why are they speaking for him?
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The eejit (profile), 15 Dec 2011 @ 11:58am

Re: Re:
Nuke it from orbit - it's the only way to be sure.

Capitol Hill is an abberation on the cultural landscape and needs to die horribly and painfully.
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Loki, 15 Dec 2011 @ 12:04pm

Re:
Not sure. Maybe he is too busy looking for a new lawyer.
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Someantimalwareguy (profile), 15 Dec 2011 @ 12:05pm

Re: Re: Re:
The first instance - get the benefit of the doubt

The next instance - get the benefit of an enormous fine and the revocation of the right to file any further DMCA take-down notices for at least 1 year.

Still abusing after 1 & 2 - get the benefit of a wrecking ball with forced divestiture of all holdings to competitors who have been proven not to have abused the DMCA for at least 5 years.

That should scare the bejesus out of any company planning to issue casual or unverified take downs, increase the work force by having to hire an army of researchers and verification staff, and place the onus of proof right back where it belongs - with the accuser, not the accused...

Just a thought...
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Anonymous Coward, 15 Dec 2011 @ 12:09pm

Re:
"Life is going to be harder on the trolls this time around. I think every strained, hypothetical argument they tried to come up with in the last post on this topic has been shot down in flames."

Actually, boy, it proves everything they said.
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Violated (profile), 15 Dec 2011 @ 12:10pm

Justice
My main hope in this case is that Judge Claudia Wilken makes a strong ruling that can be used against anyone looking to falsely sabotage a rival's advertising campaign. This is obviously a very serious matter that can affect all commercial business operations and such anti-competitive actions should be strictly punished.

I would hope for a ruling as well on falsely censoring news reports but I doubt we will be that lucky.
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Anonymous Coward, 15 Dec 2011 @ 12:11pm

Re: Re: Re:
Capitol Hill is an abberation on the cultural landscape...

If some ambitious general someday decided to take command on Capitol Hill, and ordered his troops to take all 535 senators and represenatives, slam them up against the wall and shoot them...

... well, I would be shocked. That hasn't ever happened in America before. Well, North America. North of the Rio Grande.

But I wouldn't say that this bunch doesn't deserve it. �� Viva la...
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Anonymous Coward, 15 Dec 2011 @ 12:11pm

Re:
"Umm, I have to wonder why this comes through Mega and not direct from the artist himself. Why are they speaking for him?"

Because Mega has the signed contact in hand, and UMG is probably pressuring the artist to not make any other public statements...
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Trails (profile), 15 Dec 2011 @ 12:19pm

Re: Re: Re:
But Mike can't make that call, he's just a grunt- no offense.
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Anonymous Coward, 15 Dec 2011 @ 12:41pm

UMG's actions are even worse
According to Ars Technica, they even issued a DMCA takedown against an episode of a daily news show that had a brief clip of the MegaUpload video in a news segment reporting on the video and the case.

I wouldn't be opposed to piercing the corporate veil and issuing criminal sanctions for this one.
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Anonymous Coward, 15 Dec 2011 @ 12:50pm

Re: Re:
I don't think it is quite the same. We know that the artist has a contract with UMG, and had it before any contract with anyone else.

My question is more why the artist didn't issue a statement, but instead Mega is saying things for him. Seems a little odd.
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Anonymous Coward, 15 Dec 2011 @ 12:51pm

Re: Justice
I suspect the judge will find that UMG had reason, and will let it stand.
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Anonymous Coward, 15 Dec 2011 @ 12:54pm

Re: UMG's actions are even worse
According to Ars Technica, they even issued a DMCA takedown against an episode of a daily news show...

Slashdot has also picked up this story. They have a link to Tom Merrit's own account of the takedown. He writes:

Some of you may have heard of the Megaupload video which Universal Music Group has had removed from YouTube.�.�.�

On Tech News Today we exercised our fair use rights to comment on the story by playing some of the video. Our episode has now been removed from YouTube at UMG's request.

Even if UMG does have a copyright issue in the Megaupload video, they do not have the right to silence commentary on their actions.�.�.�.
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Anonymous Coward, 15 Dec 2011 @ 12:59pm

Re: Justice
It's not even a rival situation, UMG just disagrees with their business model. I'd call it sabotage myself.
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Anonymous Coward, 15 Dec 2011 @ 1:12pm

Re: Re:
Yea, they will just claim it on Insurance, then sue the Insurance company when they refuse to pay.
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Anonymous Coward, 15 Dec 2011 @ 1:15pm

Re: Re: UMG's actions are even worse
mhm. and they wonder why we are worried about SOPA. They have already proven they aren't playing on the up and up.
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Anonymous Coward, 15 Dec 2011 @ 1:34pm

Re: Re: Justice
you are unbelievable
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The eejit (profile), 15 Dec 2011 @ 1:35pm

Re: Re: Re: Re:
IF it's foaming at the mouth, you have to shoot it. It doesn't matter if it's a dog or whatever. And clearly, that lot on the Hill is foaming at the mouth.
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Anonymous Coward, 15 Dec 2011 @ 1:35pm

Re: Re:
How is that fantasy world, anyways? The gumdrop harvest come in, yet?
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Anonymous Coward, 15 Dec 2011 @ 1:37pm

Re: Re: Re:
We also know the artist has a contract with MegaUpload, so yes, it is quite the same thing. The presence of the contracts do not change the substance of the question. Good try at a misdirection, though.
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Anonymous Coward, 15 Dec 2011 @ 1:43pm

Re: Re: Re: Re:
Why would his UMG contract not be an issue? If they have him contracted for all work, then the mega contract would be unenforceable.
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Anonymous Coward, 15 Dec 2011 @ 2:07pm

Re: Re: Re: Re: Re:
Why would his UMG contract not be an issue?

The Copyright Act of 1976 provides that copyright ownership "vests initially in the author or authors of the work." 17 U.S.C. 201(a). As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.

��Community for Creative Non-Violence v Reid (1989)
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ltlw0lf (profile), 15 Dec 2011 @ 3:05pm

Re: Re: Re: Re:
Still abusing after 1 & 2 - get the benefit of a wrecking ball with forced divestiture of all holdings to competitors who have been proven not to have abused the DMCA for at least 5 years.

Why give them to competitors? Give them to whom they really belong to, the people. All divestitures should go to the public domain, where they belong.

The problem is that the copyright maximalists despise the public domain far more than they despise pirates -- but this is why the founding fathers allowed copyright to exist in the first place, because they knew what most of us (except the copyright maximalists,) knew, that all ideas come from the society/culture in which they were created, and thus belong to that society/culture, and copyright only is there to give the author who fixed that idea to medium the opportunity to, for a limited period of time, obtain wealth in exchange for fixing that idea to medium. If you don't want your ideas in the public domain, keep them to yourself (but realize that others may eventually think up the same thing.)
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Anonymous Coward, 15 Dec 2011 @ 4:53pm

Re: Re: Re: Justice
No, actually I find that statement to be quite believable. We've watched a number of judges make extremely questionable decisions over the years. See East Texas patent suits. However, it appears -this- judge may actually have a real head on her shoulders instead of just a stuffed sock. We'll have to wait and see.
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Lawrence D'Oliveiro, 15 Dec 2011 @ 5:54pm

Re: Don't forget "Citation needed." That seems to be the latest troll favorite when they can't come up with a substantive argument.
Interestingly, that�s one objection that�s very easy to answer�if indeed you have an answer. Otherwise it�s a very effective way to shut someone up.
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Anonymous Coward, 15 Dec 2011 @ 7:43pm

Re: Re: Re: Re:
This snake has a head cut it off and the rest is not important.

They are not like the internet, they are not Anonymous, they have a CEO. That is the place to strike, put responsibility on that one guy and the board of directors.
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Anonymous Coward, 15 Dec 2011 @ 7:46pm

Re: Re: Re:
Odd if you don't understand the industry modis operandis and that is to blackball anybody they don't like.

The artist knows that and will not do or say anything that could land him in hot waters or make him fall from grace.
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Anonymous Coward, 15 Dec 2011 @ 7:47pm

Re: Re: Re: Re:
That movie never gets old LoL
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TtfnJohn (profile), 15 Dec 2011 @ 8:13pm

Re: Re: Don't forget "Citation needed." That seems to be the latest troll favorite when they can't come up with a substantive argument.
Funny thing is ask them that question and they're suddenly quite as little church mice looking out of their hole at a hungry cat.
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Anonymous Coward, 15 Dec 2011 @ 8:35pm

Confidentiality
OK, this just bugged me. The terms in the contract state that they shall be kept confidential, and that disclosing the terms may cause MegaUpload irreperable injury.

HOW? How could disclosing the terms of this agreement - which is one page long and doesn't seem to reveal any company secrets - cause irreperable injury?

Obviously, disclosing them causes MegaUpload no injury at all - in fact, they decided to disclose those terms themselves.

And THIS is why I hate lawyers. They put random clauses like this into contracts for no good reason.

... And wait a minute. There's a waiver specifically for *wrongful death* in there? Exactly why and how do these guys think this video was potentially lethal?
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Anonymous Coward, 15 Dec 2011 @ 11:11pm

I noticed that they figured out how to properly redact a pdf (unlike some other entities that I could name.) Wouldn't want some crazy fanboi getting access to Will's contact info, now would we?
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Anonymous Coward, 15 Dec 2011 @ 11:38pm

Re: Confidentiality
About the lethality of this particular arrangement I don't know, what I do know is that companies ensure all their employees with huge ensurance claims and if the employee dies the company collects the ensurance is called "dead peasants insurance", so maybe is something like that.
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G Thompson (profile), 16 Dec 2011 @ 12:49am

Re: Re: Re:
Maybe it's because Mega can and the artist, who's solicitor it seems is doing things the client has not asked for, has advised him to stay quiet.

Though the real question is what is the actual solicitor for the artist going to say to the artist about why he submitted a takedown without authority, without advising his client he was going to do so, and just exactly whom is the solicitor actually beholden too as a client? These and other questions could be a answered very nicely in an ethical review board and if the solicitor is embarking on matters that he has taken upon himself or at the behest of a third party (UMG for example) then debarment could be an appropriate punishment.

Whether Mega talks about the artist or not is irrelevant, and Mega has no legal or any other reason why they shouldn't talk about matters they have full knowledge on.
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G Thompson (profile), 16 Dec 2011 @ 12:54am

Re: Re: Justice
What legal reason?

Though with your comments here and above I have reason to suspect you are a strange malcontent
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Anonymous Coward, 16 Dec 2011 @ 7:32am

Re: Re: Re:
Wait a minute, I could have sworn that the artists were actually 'speaking' in the video about Mega.

You're claiming that Mega took the artists 'image' and made them say the things they said in the video? Kind of used them like little 'sock puppets'?

That must be what Universal is really upset about, someone else playing with their toys...
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