loaded the original copies of the software onto Sprint computers and then rebooted the
computers, thereby causing the RAM copies.^174
(q) Arista Records v. MyxerIn Arista Records LLC v. Myxer Inc.,^175 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, as well as a secondary infringer under theories of contributory and vicarious liability.^176
UMG moved for summary judgment on its direct infringement claim. Myxer opposed
such motion based on the volitional requirement for direct liability under Netcom and other
cases, arguing that the user, not Myxer, engaged in the acts of direct copying, distribution, and
public performance (if any). The court found that the undisputed facts in the case established a
prima facie case that Myxer had directly infringed at least one of UMG’s exclusive rights.^177
The court noted that it was “well-established that copyright infringement is a strict liability tort:
there is no need to prove the defendant’s mental state to establish copyright infringement.”^178
Given that fact, and the fact that the Ninth Circuit had never expressly adopted a volitional
conduct requirement as an element of direct liability, the court concluded that it was not inclined
to adopt such a requirement absent clear instruction from the Ninth Circuit.^179 (Note, however,
that the Ninth Circuit subsequently did expressly adopt a volitional conduct requirement as an
element of direct liability in the Fox Broadcasting v. Dish Network case discussed in Section
II.A.4(u) below.) Nevertheless, the court denied UMG’s motion for summary judgment because
of genuine issues of material fact pertaining to Myxer’s assertion of the safe harbor of Section
512(c), as discussed in Section III.C.6(b)(1)(iii).r below.^180
(^174) Id. at 1-3 & 15-18.
(^175) 2011 U.S. Dist. LEXIS 109668 (C.D. Cal. Apr. 1, 2011).
(^176) Id. at 2, 15-18.
(^177) Id. at 37-39.
(^178) Id. at 45.
(^179) Id. at 46-49.
(^180) Id. at 3.