considered whether the alleged infringement resulting from both the uploading and downloading
activities on Myxer’s site could be considered to occur “by reason of the storage at the direction
of a user” as required by Section 512(c). The parties agreed that the uploaded material was
clearly covered by Section 512(c), but disputed whether the downloading activities of users were
also covered. The court ruled that they were, because such downloading occurred “as a result
of” the uploaded material which was stored on the system and therefore fit within the scope of
Section 512(c)’s “by reason of the storage at the direction of a user of material.”^2717
The court then turned to whether Myxer had satisfied the threshold requirements of the
Section 512(c) safe harbor relating to a repeat infringer policy:
-- The court found that Myxer had provided evidence of the existence of a repeat
infringer policy. Myxer’s “Abuse” page on its site had always stated that Myxer would
terminate access for repeat infringers, and when a user registered with the site, the user was
required to agree to a statement that he or she understood that uploading material in violation of
the site’s Terms of Use, which prohibited using the site to upload or transmit any infringing
material, would result in the canceling of the user’s account. UMG acknowledged that Myxer
had a repeat infringer policy as to users who uploaded, but argued that it had no policy as to
users who downloaded infringing material, because only users who wanted to upload were
required to register and agree to the Terms of User, whereas there was no registration
requirement for users who only downloaded material. Myxer argued that the DMCA does not
require it to have a system in place to prevent users from downloading from its site because
requiring registration for uploading should sufficiently prevent and stop infringing activity.^2718
The court concluded the following:
To the extent that Myxer contends that it qualifies for the safe harbor because, as
a matter of law, it has no obligation to establish a repeat infringer policy for user
who download copyrighted material goes too far. That argument is based on the
proposition that users do not have to register to access the site and implies that
Myxer can avoid liability simply by declining to register users. But if internet
service providers can so easily avoid liability for infringement, the constraints
imposed by § 512(i)(a)(A)’s requirements cease to have any meaning. ... [But] to
the extent that Myxer’s repeat infringer policy as to uploading meaningfully
prevents users from accessing infringing material and can be reasonably adopted
and implemented, Myxer’s repeat infringer policy complies with the purpose of
the DMCA and § 512(i). ... Consequently, because users are necessarily limited
to downloading already uploaded material and Myxer’s repeat infringer policy as
to user who upload infringing material is appropriate and reasonable, a strong
argument can be made that a repeat infringer policy as to users who download
would be redundant. Stated another way, to the extent that adopting a repeat(^2717) Id. at 55-56.
(^2718) Id. at 57-60.