Myxer) and it did not have actual knowledge of the alleged infringement, UMG was not entitled
to summary judgment to the extent it sought to find that Myxer had actual knowledge.^2723
Turning next to the issue of red flag knowledge, the court rejected UMG’s argument that
Myxer’s awareness of “Most Popular” downloads, “Recent Downloads”, and “Just Shared” files
- which UMG argued must undoubtedly be copyrighted – did not, as a matter of law, establish
knowledge of a red flag. The court also rejected UMG’s argument that Myxer should have
implemented the Audible Magic fingerprinting system and that failure to do so indicated the
existence of willful blindness to widespread infringement because implementation would have
confirmed that infringement was occurring. But the court noted that it was not clear whether the
DMCA imposes an obligation on a service provider to implement filtering technology at all,
because the DMCA does not place the burden of ferreting out infringement on the service
provider. Although the use or non-use of filtering tools was not irrelevant, taken alone, the
failure to develop or use a filter would be insufficient to support liability and must be considered
in context with other evidence to determine existence of an unlawful objective on the part of the
service provider. Accordingly, UMG was not entitled to summary judgment to the extent its
motion was based on red flag knowledge.^2724
The court found material issues of fact with respect to whether Myxer had carried out
expeditious removal of infringing works after receiving notice. UMG claimed that Myxer had
never terminated any user its policy of repeat infringers and that, even if it did so, the user could
immediately re-register with a different user name and continue infringing. Myxer, on the other
hand, presented evidence that it responded to DMCA notices, removed infringing material within
one business day of receiving notices, had disabled more than 23,000 items in response to
DMCA notices or for suspected infringement, and had terminated at least 2,371 individual user
accounts pursuant to its policy that required termination of accounts that had been subject to two
DMCA notifications.^2725
With respect to the financial benefit prong of Section 512(c), the court noted that the
central question in this case was whether the infringing activity constituted a draw for users to
the site, not just an added benefit. The court noted that the relevant inquiry was whether there
was a causal relationship between the infringing activity and any financial benefit Myxer
received, and noted that the record supported the conclusion that Myxer undoubtedly received
some financial benefit from the infringing activity. However, to the extent that infringing
material represented only 1% of total uploaded material on the site, it remained unclear to what
degree UMG’s works served as a draw. The court concluded that, without more, it could not on
a motion for summary judgment resolve the issue in favor of UMG and against Myxer.^2726
Finally, with respect to the right and ability to control prong, the court agreed with
numerous other decisions that the mere ability of a service provider to remove or block access to
(^2723) Id. at 79-84.
(^2724) Id. at 86-89.
(^2725) Id. at 25,
(^2726) Id. at 97-98.