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Mystery surrounds Universal's takedown of Megaupload YouTube video

Universal claims it was authorized to order the takedown of a Megaupload video because of a certain agreement with YouTube and that it wasn't claiming copyright ownership.

Puff Daddy is one of a slew of hip-hop artists and other celebrities who are featured in the Megaupload video that Universal had removed from YouTube for unclear reasons.
Puff Daddy is one of a slew of hip-hop artists and other celebrities who are featured in the Megaupload video that Universal had removed from YouTube for unclear reasons.

Legal sparring between hosting site Megaupload and Universal Music Group has taken an interesting, if confounding, turn.

To summarize: Megaupload posted a promo video on YouTube a week ago featuring a raft of hip-hop stars. It was quickly removed after Universal Music Group (UMG) complained. Megaupload sued UMG on Monday and asked the court to bar UMG from blocking the distribution or display of the video. The video was back up on YouTube last night, but Megaupload vowed to continue the court case. (For the longer replay read "In SOPA's shadow, Megaupload strikes back against Universal.")

The video was back up after UMG failed to assert valid ownership rights, but the company is now saying it never claimed copyright ownership. Even though UMG used YouTube's automated tools for copyright owners to request takedowns under the Digital Millennium Copyright Act, UMG indicated, without specifics, that it might have other rights. It implied it was authorized to request the video removal because of a certain written agreement with YouTube, but it doesn't provide details on what the agreement covers and why it applies.

"What actually transpired was UMG's use of YouTube's Content Management System, which UMG is contractually authorized to use pursuant to its written agreement with YouTube," UMG lawyers said in a filing last night urging the court to reject Megaupload's request for a temporary restraining order. "That is a matter of contract between two private companies--UMG and YouTube--not a notice sent pursuant to the DMCA."

As an exhibit, UMG attorneys submitted a copy of a letter UMG attorney Kelly Klaus sent to YouTube on Wednesday that refers to a specific agreement.

"Your letter could be read to suggest that UMG's rights to use the YouTube 'Content Management System' with respect to certain user-posted videos are limited to instances in which UMG asserts a claim that a user-posted video contains material that infringes a UMG copyright," Klaus wrote. "As you know, UMG's rights in this regard are not limited to copyright infringement, as set forth more completely in the March 31, 2009 Video License Agreement for UGC Video Service Providers, including without limitation Paragraphs 1(b) and 1(g) thereof."

There is no additional information supplied about the agreement. UMG representatives and lawyers did not respond to requests for comment.

A YouTube reprsentative declined to comment on the matter beyond providing this statement: "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."

So, UMG implied it has the right to demand the video takedown under an agreement with YouTube. But it won't reveal the specifics on the agreement or say why it wants the video removed.

Based on YouTube's response, it would appear that the mystery agreement covers artists under contract with UMG who have a live performance that appears in a video on YouTube. Regardless, YouTube apparently doesn't think UMG's takedown request was valid even under that criterion.

Megaupload attorney Ira Rothken thinks the whole thing smells fishy.

"UMG is now claiming that it has a private, automated censorship right--supported by a secret process that can take down any YouTube video with immunity from the DMCA--and there is nothing that this Court could do about it," he wrote in a court filing today.

Even though the video is back up, the filing asks the court to grant the temporary restraining order because UMG has requested other Web sites to remove the video, as well. The Megaupload filing asserts that UMG has called that claim "speculation" but has not outright denied it.

"UMG's actions and their continuing harm implicate important speech suppression issues, warranting immediate and narrow discovery to test the integrity of UMG's argument, and the extent of its continued interference with the full and fair display of the video, in preparation for the preliminary injunction hearing," the Megaload filing says.

Here's the video at the heart of the litigation: