The court also denied UMG’s motion for summary judgment with respect to its claims of
contributory and vicarious liability. With respect to contributory liability, the court noted that
there were substantial noninfringing uses of the Myxer site, because many of the ringtones and
recordings available were directly authorized by their copyright holder or users had certified that
they controlled the rights. Nevertheless, the court found summary judgment to be inappropriate
because contributory infringement requires a showing of direct copyright infringement, which
had not yet been definitively established. With respect to vicarious liability, the court noted that,
to the extent Myxer used the Audible Magic filtering technology to keep infringing material from
being uploaded onto its site, as well as other means to stop or limit the alleged copyright
infringement, there were genuine issues of material fact as to whether Myxer sufficiently
exercised a right to stop or limit the alleged copyright infringement. And, as in the case of
contributory infringement, it remained unclear whether there was an underlying claim of direct
infringement.^181
(r) Disney Enterprises v. HotfileIn Disney Enterprises, Inc. v. Hotfile Corp.,^182 the defendant operated the web site
http://www.hotfile.com, at which users could upload electronic files to Hotfile’s servers. Upon upload,
the user received a unique link to the file. The Hotfile servers would then automatically make
fi ve additional copies of the uploaded files and assign each copy a unique link. Each link acted
as a locator, allowing anyone with the link to click it or plug it into a web browser in order to
download the file. Third party sites, not Hotfile, catalogued, allowed searching of, and/or spread
the links that allowed persons to download the files.^183
Hotfile made a profit in two ways. First, although anyone could use a link to download a
file, Hotfile charged members a fee that enabled them to download files much faster than non-
members. Second, Hotfile sold “hotlinks” that allowed third party sites to post a link that, when
clicked, automatically began to download the file, without ever directing the person clicking the
link to hotfile.com. To increase its number of members, Hotfile paid users to upload the most
popular content to its servers and asked that the users promote their links. Hotfile’s affiliate
program, for example, paid those uploading files cash when the file was downloaded 1000 times.
The complaint alleged that, as a result of their popularity, copyright-infringing files constituted
the bulk of files downloaded through Hotfile, Hotfile’s business encouraged persons to upload
material with copyright protection, and Hotfile understood the consequences of its business
model.^184
The defendants filed a motion to dismiss the plaintiff’s claims for direct and secondary
liability for copyright infringement. The court granted the motion as to direct infringement,
invoking the requirement of Netcom that there must be some volitional act on the part of the
(^181) Id. at 137-141. The court also concluded that as a matter of law, Myxer’s use of UMG’s works did not qualify
as fair use. See id. at 109-135.
(^182) 798 F. Supp. 2d 1303 (S.D. Fla. 2011).
(^183) Id. at 1306.
(^184) Id. at 1306-07.