If a label lacks a valid copyright claim on a YouTube video, should it still have the ability to rip that video down?
According to a rather combative letter sent to YouTube by Universal Music Group lawyers, the answer to that question is yes. “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 Licensing Agreement for UGC Video Service Providers…”
The letter, from attorney Kelly Klaus of UMG-hired Munger, Tolles, and Olsen LLP, is now being entered into evidence in a broader court battle involving MegaUpload. And, it now appears to be part of a very different UMG defense against the cyberlocker giant, one that sidesteps the DMCA in favor of private agreements.
In the moments following the pulldown of the ‘MegaUpload Song,’ YouTube requested that UMG immediately detail its copyright claims following a takedown notice. And statements from the label strongly suggest that Universal Music Group did exercise takedown provisions to remove the video, based on a specific copyright violation. But instead of federal copyright law, it now appears that Universal is actually relying on these private agreements involving YouTube, Google, and potentially VEVO to settle disputes.
And within those agreements, Universal Music carries a gigantic trump card: its entire catalog. “Since we appreciate your statement ‘that UMG is an incredibly valued partner of YouTube,’ I wanted to be certain to clear up any misimpression of the facts… as I am sure this was not your intention,” the letter vaguely threatens.
Of course, federal courts don’t need catalog, and weren’t impressed. Ahead of the weekend, MegaUpload has successfully restored its ‘MegaUpload Song’ video on YouTube (and other platforms), thanks to a granted injunction. UMG fought the attempt to restore with an aggressive – and totally unsuccessful – counterfiling.