UMG vs Michelle Malkin

Please Note: I am not a lawyer and nothing in this site should be taken as legal advice. Check out my top 10 list of things that make more sense than taking legal advice from me.

Universal Music Group vs Michelle Malkin

Was the DMCA Used To Try To Hide Evidence Of Molesting A Minor?

Universal Music Group's DMCA Raises Suspicion

On April 12, 2007, Akon, a well known hip hop artist and documented thug, dry-humped Deena Alleyne while giving a concert in Trinidad. This was especially disturbing since Alleyne was only 14 or 15 years old when he tossed her around on stage like a rag doll while dancing in a sexually aggressive manner. (Accounts of her age are conflicting.) To be fair to Akon, he probably didn't know she was underage because the club he was playing at had a minimum age of 18, and judging from her pictures, she was provocatively dressed and she could have easily passed for 18. But whether he knew she was underage or not, the fact remains that Akon tricked her into getting on stage under false pretenses (to win a trip to Africa) and he molested a minor. Conservative commentator and syndicated columnist Michelle Malkin posted a video she produced about the incident on HotAir.com, a site that she founded, and on Youtube. The video was a caustic (but well justified) attack on Akon that could only have embarrassed those who backed him. Universal Music Group, Akon's record label, sent a DMCA to Youtube to get Malkin's Video removed. Malkin fought back with the help of the Electronic Frontier Foundation and eventually got the video restored.

There is no question that Malkin's use of a short video clip from Akon's concert fell within Fair Use. The only question is, WHY did UMG DMCA the video? Malkin wrote: "We concluded that this was a clear attempt to suppress the report by abusing the DMCA." If Malkin is right, then UMG is responsible for some pretty serious behavior. Remember, UMG signed the DMCA under penalty of perjury accusing Malkin of copyright infringement. If UMG knew that Malkin's use was Fair Use and if their primary purpose was not to protect their copyright interest, but to protect the reputation of their artist from legitimately reporting his at-best indecent, and possibly criminal behavior, then someone at UMG ought to go to jail for perjury. But before concluding that someone at UMG committed perjury, we ought to explore the possibility that this was just an innocent mistake. Perhaps Malkin's video was mistakenly taken down when she was caught in a massive UMG dragnet similar to the Viacom dragnet that clobbered some innocent victims when Viacom sent Youtube 100,000 DMCAs in one day.

The Evidence Points Toward An Attempted Coverup Via DMCA

Unfortunately for UMG, there are several pieces of evidence that suggest this was not the case. None of these pieces of evidence are particularly persuasive on their own, but taken together, they at least strongly suggest wrongful behavior on UMG's part.

Viacom's dragnet was so huge and blatant that it caused massive outrage on the internet. By contrast, I could find no evidence that UMG had conducted a similar dragnet around the time that Malkin's video was removed.
1. According to this interview at allhiphop.com, Akon went on Angie Martinez's radio show and told the audience something very controversial. The article doesn't say explicitly what he said that was controversial. Accounts vary. Some say that he admitted he was a polygamist with three wives. Other accounts deny that he was a polygamist, but say his father was a polygamist. Whatever he said, UMG apparently told him not to talk about his approval of polygamy any more because it was beginning to affect other people's lives. (Who it was affecting, Akon didn't say.) If UMG was trying to control what Akon was saying to the press, might it also have been trying to control what the press was saying about him?
The music from the Trinidad concert in Malkin's video that was DMCAd lasted under 30 seconds. This concert music was indistinct and hard to make out. There was also an 18 second clip of him singing on the American idol show. And finally, Malkin's video also included clips from two of Akon's videos ("I Wanna Fuck You" and "Smack That") which she used to show their explicitly misogynistic lyrics. Combined, the two clips totaled 56 seconds. If UMG really thought that the public might use these short clips as a substitute for buying Akon's music, then I would expect them to be hyper vigilant to make sure that none of his complete videos are on Youtube.
YOWZA! Do a search on Youtube for "Akon" videos, and you will see hundreds of hits. DOUBLE YOWZA!! Not all those hits are pirated videos put up against UMG's will. At least 13 of those videos WERE POSTED BY UMG ITSELF!!!! TRIPLE YOUZA!!! Amongst the videos posted by UMG were "I Wanna Love You" and "Smack That". "I Wanna Love You" is exactly the same video as the one which Malkin used a clip from with one key difference. In the video that Malkin borrowed from, Akon sang "I Wanna Fuck You". In the video UMG put on Youtube, he sang "I Wanna Love You". Otherwise, they were the same video. UMG posted the "clean" version, Malkin posted the vulgar version. And UMG posted the entire version of "Smack That" whereas Malkin only posted around 30 seconds worth.
OK, so UMG put a lot of Akon's clips on their Youtube channel. But that still doesn't rule out the possibility that Malkin got caught in a dragnet if UMG had sent Youtube tons of DMCA notices in early May 2007 to get rid of Akon videos on everyone else's channels. Unfortunately for UMG, there are still at least 12 Akon clips (mostly video, but a few just audio) that were posted between March 12 and April 28, 2007. They all had "Akon" in their titles or video descriptions, so it would have been relatively easy for UMG to find them if they had been conducting a Youtube dragnet. There were also a lot of Akon videos posted before March 12, but I did not bother to document them. If UMG had been conducting a dragnet, why did it catch Malkin's video while leaving so many other videos that were obviously more infringing behind?
As you shall see next, Malkin's video was not the first embarrassing Akon video that UMG removed from Youtube with DMCAs. Obviously, the video coverage that Malkin used of Akon dry humping a 15 year old girl at the Trinidad concert was produced and released on the internet by someone, and it obviously wasn't UMG. A review of the video's history reveals that UMG tried to get the original video removed even before Malkin posted her video to Youtube on May 2.

UMG DMCA's The Original Video

Here is the history of the video that UMG removed from Youtube even before Malkin made her HotAir video.

April 14: Article in Trinidad Express says Akon conned several women into dancing on stage with him under false pretenses at the Zen nightclub. Akon's crew filmed the dance "competition" and Akon said the video would be posted to Youtube. (The article is no longer available, but other articles refer to this article.)

April 16: Allyuh.com made a post saying that Zen posted a video of Akon. Presumably, this video was the one made by Akon's crew.

April 19: Michelle Malkin posts her first story about Akon on michellemalkin.com. She posted the contact information for Akon's record label, Universal Music Group's, presumably so that her outraged readers would contact them and ask them to drop Akon from their label. You will note if you click on the video embedded in her story, a message appears stating "We're sorry, this video is no longer available." The video that Malkin had embedded was the original video taken from the Zen Club, not the HotAir critique which would come later. I looked at the page source info to find the URL for the missing video. Here is what I found:

value = "http://www.youtube.com/v/smbeaVR8NPQ"

The part after v/ was the video's Youtube address. This is what the properly formatted Youtube URL looks like.

http://www.youtube.com/watch?v=smbeaVR8NPQ

Click that, and this is what you will see.

April 20: We can now see that the copy of the video that Allyuh.com had embedded in his site on April 16 is different from the one that Malkin had embeded in her April 19 column. If you click the video you will see that it too has been deleted by a DMCA notice. Allyuh.com then posted a copy of the DMCA. As you can see in the DMCA , it has a different URL than the copy embedded in Malkin's original post. Dre, the author of Allyuh.com, stated that "Universal Music Group has sent a takedown notice to YouTube to remove all incidents of the Akon Zen Video from Trinidad."

I think this is a case where this has received too much bad publicity across the internet and Universal is acting in a defensive manner to remove all evidence of the indecency, however as with all things on the internet it will alway be available for those willing to look a little more.

So now we know that even before Malkin made her HotAir video criticizing Akon, UMG had filed DMCA complaints that got at least two copies of the original Zen video removed. Make no mistake about it: This video was different then the HotAir video made by Malkin that was later DMCAd. This video contained no commentary and it also didn't contain any clips from Akon's polished movie videos. It was just 48 seconds of his exploitative dry humping of Deena Alleyne. Fortunately, it was copied to other websites despite UMG's efforts to suppress it, so you can still see it for yourself.

UMG's DMCA of Malkin's Video

Here is the history of UMG's DMCA of Malkin's HotAir video.

May 2: 2007 Malkin posted a HotAir report about Akon on Youtube and on HotAir.com

May 3: 2007-Youtube yanks the HotAir Video and sends DMCA to Malkin .

May 8: HotAir and the Electronic Frontier Foundation fight back by sending a DMCA counternotice, and Malkin publicizes this on her blog the next day.

May 10: Malkin received a message from Youtube stating that Universal Music Group had withdrawn their DMCA complaint. The message stated that YT was restoring the video.

May 10 or May 11: Either Youtube didn't restore the video, or they did restore it and they took it back down almost immediately and replaced it with a new message saying the video violated Youtube's Terms of Service.

May 11: EFF's senior staff attorney, Kurt Opsahl, demanded an explanation for Youtube's claim that Malkin's video violated Terms of Service. Youtube then restored the video.

I'd really love to know why Youtube labeled the video a TOS violation and refused to repost it until after the EFF's lawyer pressed them for an explanation. Was it because Youtube wanted to take the high moral ground and by refusing to be associated through their UMG connection with such a low-life scumbag? If that's the case, then why do they allow UMG to post so many of Akon's videos on their channel? Or was it because UMG is a strategic partner with Youtube, and Youtube was trying to aid and abet UMG by saving it from some very bad publicity? Or perhaps it was just general incompetence on Youtube's part. Whatever the reason, Akon's UMG videos are alive and well on Youtube.

Aftermath

Akon, being the thug that he is, didn't learn from his mistake. On June 5, 2007, DiamondTomek posted a video showing Akon lifting a 15 year old boy over his shoulders and throwing him off the stage. Not only did Akon endanger the welfare of a minor, he reportedly caused concert goer Abby Rosa to suffer a concussion when the boy landed on top of her.

I'm sure that Akon has made everyone who is associated with him very proud.

Conclusion

As you can see, it certainly appears like someone from UMG committed perjury by improperly using the DMCA to suppress an embarrassing news story. This is not what copyright law was intended to do, and it shows just how far the DMCA is from the vision enunciated by our Founding Fathers in the Constitution.

I stressed the word "appears" in the above paragraph for two reasons.

It is possible that I could be wrong if I am missing something in my analysis. I think the odds of this are low, but I don't want to give lawyers at UMG a target for a big fat libel suit by claiming as a statement of fact that they have perjured themselves.
Perjury requires that the person who perjured himself knew that he was lying. The folks at UMG might claim that they had a copyright and they thought they had the right to prevent others from using their video without their permission. They might claim that they did their own fair use analysis and thought that they had the right to prevent Malkin from posting video clips from Akon's music videos and they thought they had the right to bar others from using raw footage from the concert. They might even make the bogus claim that "Fair Use is just a defense and not a right." It might be hard to prove that they knew they were lying when they signed the DMCA. But I would love to see a DA try.

We are fortunate that enough people reposted the original video on sites other than Youtube. Otherwise we might not have seen what happened at the concert and the story might have been buried. But this incident brings up several important questions:

What if every internet site followed the same craven policy that Youtube follows and removed videos upon receipt of a DMCA--no questions asked. Might UMG have been able to bury or delay the story?
Does Youtube's policy encourage people to file questionable DMCAs in the hopes of suppressing unfavorable stories? Would UMG have even bothered sending Youtube a DMCA had they had a policy that supported Fair Use?
We heard of this story thanks in part to people like Malkin who fought back by filing a counternotice and people who reposted the original video elsewhere. This is an example of the Streisand effect which makes it more and more difficult for people to censor stories. Of course, we hear of incidents where the censorship has been unsuccessful. But how many stories haven't we heard because they have been successfully censored by the DMCA?
How successful would Malkin have been in getting her video restored if she had been posting anonymously and if she had wanted to make sure she remained anonymous? Would she have been willing to inform UMG of her name and address by filing a DMCA counternotice? This question may be of more than minor interest to the folks at HotAir since their most prolific blogger is the anonymous blogger Allahpundit.

Akon Videos posted by UMG

Akon Videos (or audio) Posted by non-UMG channels between March and early May 2007

Please attribute excerpts you take from my work to themaskedanalyst and include a link to themaskedanalyst.com.