It's common in law to make a legal argument based on a claim and then to continue a conjectured argument even if that claim is rejected. For example, they say they are not subject to the DMCA (17 512(f)) then claim that even if they were, that the case would still not prevail due to caselaw and requirements of the DMCA.
UMG also cites convincing caselaw arguing that irreperable harm has not been done since the alleged infringing activity has ceased in a relatively short amount of time. What damages can Megaupload quantify?
It seems possible UMG could only be on the hook for a contract dispute with YouTube.
It cost Megaupload $3 million to make this video for their own advertising - quashing that advertising fraudulently seems damaging to me. How you'd quantify it I don't know.
Except there's not necessarily a 'right' to have your video on YouTube, and it's possible that UMG was acting, albeit with bad faith, in the capacity of YouTube curator.
Megaupload's Friday filing seems to imply their current strategy is to hunt for evidence of DMCA takedown requests sent to other sites like Vimeo, as well as expose whatever they can about the agreement between UMG and YouTube.
The hosting agreement for the video is purely between YouTube and the uploaders, though. Both YouTube and the uploaders can make a case for tortious interference.
UMG was acting in the capacity of YouTube curator in the same sense script kiddies are acting in the capacity of security leak exposure consultants, perhaps. I'd hate to have to make that argument to a judge that understood the actual situation.
Doesn't this obvious bad faith have any negative repercussions for UMG?
Theoretically YouTube could kick them form their automatic filtering program for a period of time or put some other requirement on their continued use of it.
Let me be more specific: "Doesn't this bad faith on UMG's part have any bad consequences that aren't graciously bestowed by another large company?" I thought we were a nation of laws, not corporations? Is fraud only a business cost now?
“Say you sue me because you say my dog bit you,” he told the audience. “Well, now this is my defense: My dog doesn’t bite. And second, in the alternative, my dog was tied up that night. And third, I don’t believe you really got bit.”
His final defense, he said, would be: “I don’t have a dog.”
Would it matter if their contract stated that a "takedown" issued by UMG constitutes an implicit DMCA request? It seems plausible that Google could have worded it in that way.
UMG also cites convincing caselaw arguing that irreperable harm has not been done since the alleged infringing activity has ceased in a relatively short amount of time. What damages can Megaupload quantify?
It seems possible UMG could only be on the hook for a contract dispute with YouTube.