UMG sues MySpace in a no-lose proposition, draws Grokster judge

UMG sues MySpace in a no-lose proposition, draws Grokster judge

Summary: After its negotiations with MySpace broke down, there was no downside to Universal Music Group suing MySpace for copyright infringement. The suit will be a significant factor in any future negotiations, and can be dismissed down the road without terribly dire consequences if UMG so chooses. Should the suit go forward, it is slated to do so in front of Stephen V. Wilson, the trial judge in MGM v. Grokster.


Last Friday, Universal Music Group filed copyright infringement claims against MySpace, claiming that MySpace and News Corp. are "liable for the direct infringement of [UMG's] copyrights, and for aiding, facilitating, and inducing the infringement of [UMG's] copyrights by countless MySpace users."

Steve O'Hear provides terrific context in the form of a timeline, to which I would add one key footnote:  when filed last week, UMG's complaint was assigned to Judge Stephen V. Wilson:  the trial judge in the MGM v. Grokster litigation.  In September, Judge Wilson applied the Supreme Court's decision in that case to grant summary judgment against defendant StreamCast on theories quite similar to those now being asserted by UMG against MySpace.  (More on Judge Wilson's recent decision from Ars Technica and Cathy Kirkman.)  I think it's safe to say UMG and its lawyers could not be more thrilled with their draw of a judge.

It's a sad reflection on our judicial system and the state of U.S. copyright law — which many of you feel should be rewritten — that there was no strategic downside to UMG filing this action.  In the wake of MGM v. Grokster, it is extraordinarily unlikely these claims would ever be considered purely tactical and frivolous, so as to subject the plaintiffs and their lawyers to Rule 11 sanctions.  Nevertheless, there is no denying the tactical value of the claims to UMG vis à vis MySpace/News Corp.  And virtually all of the potential outcomes are rosy for UMG.  Consider:

  • the lawsuit lets UMG strong-arm the deal it wants = it wins;
  • UMG wins the lawsuit = it wins; or
  • in the unlikely event UMG decides the tide has turned against it in court and it may wind up creating bad (for UMG) precedent concerning the impact of the DMCA safe harbor, or that the marketing/promotional impact of MySpace is too great to try to squelch, it negotiates a dismissal with partial payment of the defendants' attorneys' fees = it wins.
Under any of the foregoing scenarios, this case is little more than a game of high stakes poker.  The way it stands to get really interesting is if UMG ultimately has the hubris and confidence to go to mat on the inevitable DMCA defense.

Topic: Legal

Denise Howell

About Denise Howell

Denise Howell is an appellate, intellectual property and technology lawyer who enjoys broad industry recognition for her expertise on the intersection of emerging technologies and law.

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  • I so hate current copyright Laws ...

    They should all be rewritten especially the DMCS! Actually I think we need just get rid of that P.O.S! But hey we can?t buy a few congressmen and senators like they (RIA ETC.) Can, so they get the Gold Mine And we get the shaft!
    OK if your Mom told you life is fair ... she lied to you!
  • American courts have become a farce

    Once again we have a case that has absolutely nothing to do with justice. It's sickens me the way individuals and corporations manipulate the law for their own selfish gains.

    Universal is obviously trying to strong arm MySpace in signing some sort of deal. Why keep negotiating and eventually settling for terms you don't like? Just drag the other party's ass to court and make them squirm till they give you what you want.

    It's a bullying tactic and the American legal system is an accomplise.

    Justice has long ago stopped being about what is right and fair. These days it's about who can afford the best lawyer, i.e. if you have the money, you can buy a verdict.

    No crime was committed here. It is not MySpace's responsibility to look after or protect the properties of Universal or it's affiliates. Universal has the tools, provided by MySpace, to have any material it feels has been wrongfully uploaded removed.

    But this isn't a fight about infringed copyright is it?
  • Strategic downside

    I can think of one--MySpace could ban all mention of any of UMG's artists or releases on MySpace. If they can come up with the mythical beast that is effective filtering software, they could remove every mention, whether by word or as a song/video clip of any product UMG was trying to sell. Which basically means that no teenager would ever know that those movies/songs exist.

    There's certainly danger involved in biting the hand that feeds you.
    tic swayback
    • For that to be a "Risk"

      They would have to come up with the mythical beast that is effective filtering software .. so until and If that happens I don?t see a real downside for them. And if it happens that somebody Finds this mythical beast and starts selling it before the case is closed then they can always backpedal and squirm out of the case by offering terms that myspace would accept. Or just arrogantly plow on ahead and trust that backlash from young people towards myspace for filtering the words out will cause Myspace to just do what the wanted in the first place.
      • Too true

        Hmm, then what about simply instituting an automated myspace-wide smear campaign against any UMG movie or cd? It would be interesting to see how much power myspace really commands in the marketplace.
        tic swayback
    • Absolutely

      These big media companies always seem to aggravate the situation with their bullheaded approach to copyright issues. Maybe they need to adopt a less confrontational strategy. Considering many of these people are their customers (or consumers from their perspective perhaps).
  • They are going after section 512

    I just read the complaint. They are going after section 512. It is interesting because in the complaint UMG admits that the users uploading the content identify themselves as the copyright owner and they tack on a second complaint because they purport that the uploaders are phony copyright holders. The claim is that uploaders are claiming to be the copyright holder hence could legally post the info but in reality are not the copyright holder.

    Also the compliant charges that MySPace allows animinity of users, this is doubtful as I am sure if they send MySpace a DMCA expidited subpoena MySpace would turn over the info lickety split.

    Odd enough UMG argues that MySpace knows it is distributing copyrighted content- Well Duh!!! UMGs lawyers don't seem to understand the copyright system since 1976. After the Berne convention copyright law was changed to an Opt-Out system , Kahle v. Gonzales is arguing this changed the scope and Lessig has more on this, which means everything is copyrighted. I take a picture of my cat and post it on a web server that picture is copyrighted and I hold the copyright. I write a description of my cat and it is likewise copyrighted. The moment that anyone puts a copyrightable expression into tangible form (Writes it down, saves a video, takes a picture) it becomes copyrighted. In effect everything posted to any web server that is eligible for copyright protection is copyrighted unless the author explicitly gives up their, and their heirs (Remember copyright lasts the length of the author's life plus 70 years), rights in writing. Registration, after Berne, is no longer required for copyright.

    Coincidently due to this there cannot be any database of copyrighted works especially unpublished works due to the fact that registration is not required.

    In addition the compliant charges them with hosting [b]Unpublished[/b] works. That is right in the compliant. My question is how is any web host supposed to recognize a work that has yet to be published and is available to the general public. If it is not available to the general public yet how is anyone reasonably suppose to expect that a song called XYZ posted by group DFI is really song ABC written by group DEF if the song has not been published yet? It becomes a matter of he said she said. And oh yes this is all written in the complaint!! My question is this album registered yet and was it registered prior to it being hosted.

    What is funny is that the US Copyright office itself has had situations where two companies have registered the same work. In the case of SCO v. Novell this indeed has happened where both SCO and Novell have registered Unix source code as their own.

    The rest of the complaint is that they are operating a web server. Being able to link to pages and email links and even display the works on other web pages is all part of what a web host does.

    As everything is copyrighted and there is no sure way, not even looking at registrations at the copyright office, that the individual posting indeed is the copyright holder let alone on unregistered and previously unpublished works there is [b]no way[/b] to verify the owner besides taking the submitter's word on it, then no web host could ever publish anything with complete knowledge that it is not infringing copyright. This is indeed why section 512 exists in the first place.

    In short UMG wants to shut down the internet.
    Edward Meyers