infringer policy as to users who download is not feasible, the Court is compelled
to construe any such policy beyond the realm of appropriate and reasonable.^2719The court therefore concluded that Myxer had sufficiently demonstrated the existence of repeat
infringer policy, and whether that policy was adequate to meet the requirements of the DMCA
was an issue that must be resolved at trial.^2720
-- The court concluded that, because Myxer’s Terms of Use indicated that Myxer
reserved the right to terminate repeat infringers’ ability to upload, Myxer had raised a genuine
issue of material fact as to whether it reasonably communicated a repeat infringer policy to
users.^2721
-- The court concluded that Myxer had also raised a genuine issue of material fact as to
whether it reasonably implemented it repeat infringer policy. Myxer’s copyright compliance
officer and designated DMCA officer stated that she processed DMCA notices immediately and
disabled infringing material usually within one business day of the notice and also disabled
access to material and terminated users in response to informal notices as well as DMCA-
compliant ones. UMG argued that Myxer’s implementation of the policy was inadequate
because, even if a user was terminated, that user could immediately re-register with a different
user name and resume infringing. The court rejected this argument, noting that UMG had cited
no controlling authoring indicating that such a set of circumstances would render a policy
insufficient under the DMCA. Moreover, even UMG had provided evidence of users re-
registering after their accounts had been terminated, that would not necessarily evidence a failed
implementation of the policy.^2722
The court then turned to the knowledge prong of the Section 512(c) safe harbor. Looking
first at the issue of actual knowledge, the court noted as an initial matter that general awareness
of infringement on the site, without more, is not enough to preclude application of Section
512(c). The existence of some licenses between Myxer and third parties with respect to some
sound recordings used on the site diminished the plaintiff’s argument that Myxer had actual
knowledge of infringement because any awareness of copyrighted material may have related to
licensed material only. Nor did Myxer have an obligation to actively seek out actual knowledge
of infringing material by searching its system. Accordingly, because the burden is on the
copyright holder to give notice of allegedly infringing material and Myxer provided evidence
that notice from UMG was insufficient (coming only in the form of the complaint filed against
(^2719) Id. at 60-61.
(^2720) Id. at 63.
(^2721) Id. at 66-67.
(^2722) Id. at 69-71. Myxer also submitted evidence that it had a “Take Down, Stay Down” policy that used Audible
Magic’s filtering technology to block future uploads of works identified in DMCA notices from being uploaded
to Myxer’s site. The “Stay Down” list included more items than DMCA notice received because Myxer
removed any existing items from the same users/titles it could locate and added those works to its “Stay Down”
list. Id. at *23-24.