Finally, in some final miscellaneous rulings without much elaboration in the opinion, the
court held that under the provisions of Section 512(m), Photobucket had no duty to do the
policing of its web site for infringements that the Plaintiff suggested, and Photobucket could not
be held liable for contributory or vicarious infringement because it was entitled to the Section
512(c) safe harbor. And in any event, the evidence did not support the plaintiff’s allegation of
contributory infringement because she had not demonstrated Photobucket to have acted with
knowledge that it was passing along infringing images to the Kodak defendants, that it acted in
concert with the Kodak defendants to infringe upon the plaintiff’s copyrights, or that it sought to
encourage copyright infringement or promoted its service as a means of circumventing
copyright.^2712
On appeal, the Second Circuit affirmed in a short per curiam opinion, agreeing that the
district court had properly granted summary judgment for substantially the reasons stated by the
district court.^2713 The Second Circuit rejected the plaintiff’s argument that Photobucket should
have done more to police its web site for infringing material, an argument it found foreclosed by
its decision in Viacom Int’l Inc. v. YouTube, Inc.^2714
r. Arista Records v. MyxerIn Arista Records LLC v. Myxer Inc.,^2715 the defendant Myxer operated a website
that enabled registered users to upload recorded music to the site and then, through the use of
Myxer’s software, to transcode the music into a format to create and download ringtones. Users
could make ringtones they had created available for download to other users. In addition to
uploading and downloading ringtones, Myxer users could play portions of any of the sound
recordings on Myxer’s site. Users could also select a sound recording on Myxer’s site and share
it on certain third party websites such as Facebook. Finally, users could select a sound recording
on Myxer’s site, often a full-length recording, and “Customize It” (using editing tools provided
by Myxer) by selecting a desired start and stop point for a ringtone. UMG Records, a competitor
in the ringtone market, contended that, by storing copies of UMG’s sound recordings on its
servers, allowing users to download copies of its sound recordings to users’ cell phones, and
allowing users to preview its sound recordings on either the Myxer site or on users’ cell phones,
Myxer was a direct infringer of UMG’s reproduction, distribution and digital public performance
rights and a secondary infringer under theories of contributory and vicarious liability.^2716
In response to UMG’s motion for summary judgment, for the reasons set forth in Section
II.A.4(q) above, the court found genuine issues of fact with respect UMG’s claims of direct,
contributory and vicarious liability. The court also found genuine issues of fact with respect to
Myxer’s assertion of the safe harbor under Section 512(c). As an initial matter, the court
(^2712) Id. at 749-50.
(^2713) Wolk v. Photobucket, Inc., 569 Fed. Appx. 51 (2d Cir. 2014).
(^2714) Id. at 52 (citing Viacom Int’l v. YouTube, Inc., 676 F.3d 19, 30-41 (2d Cir.2012)).
(^2715) 2011 U.S. Dist. LEXIS 109668 (C.D. Cal. Apr. 1, 2011).
(^2716) Id. at *2, 15-18.