Advanced Copyright Law on the Internet

materials posted on its site or stored in its system is insufficient to satisfy the right and ability to
control requirement. UMG argued that Myxer could control infringement because virtually all of
the MP3 files uploaded to its site by users were embedded with metadata containing the name of
the song, the recording artists, and, sometimes, the copyright owner, which Myxer could use to
filter out works for which it possessed no rights, but it had chosen not to do so. The court
rejected this argument, noting that the DMCA does not require service providers to deal with
infringers in a particular way, such as by implementing filtering of the sort identified by UMG.
Moreover, the court noted that the allegedly infringing works were not uploaded by Myxer,
Myxer did not select or preview them, and the processing of uploads into downloadable format
was entirely automated. Accordingly, because the evidence was in conflict regarding whether
and to what extent Myxer had the right and ability to control infringing activity, UMG’s motion
for summary judgment with respect to the safe harbor was denied.^2727

s. Flava Works v. Gunter

The facts of this case are set forth in Section III.C.1(b). In granting the plaintiff’s motion
for a preliminary injunction, the court ruled that the defendants were not entitled to the Section
512(c) safe harbor because they had not adopted and reasonably implemented a repeat infringer
policy. The owner/operator of the myVidster web site had adopted a definition of “infringer” to
mean a user who posted a link to content that was not otherwise publicly available on another
web site – i.e., content that was hosted on a password-protected or private web site. The court
ruled that this definition did not encompass the law of copyright’s definition of “infringer,” and
therefore any repeat infringer policy based on such a definition could not be adequate. In
addition, although the owner/operator removed videos listed in DMCA notices, he did not go any
further to terminate users who were the subject of repeat infringement notices.^2728

The Seventh Circuit reversed on appeal, finding that the safe harbor was irrelevant
because the defendants were not liable for copyright infringement, and vacated the preliminary
injunction, for the reasons discussed in Section III.C.2(m) above.^2729

t. Capitol Records v. MP3tunes

The case of Capitol Records, Inc. v. MP3tunes, LLC^2730 tested whether the operator of a
music “locker” service is liable for infringing music files stored in its users’ lockers. The
defendant MP3tunes operated a storage service that allowed users to store music files in personal
online storage “lockers.” Songs uploaded to a user’s locker could be played and downloaded
through any Internet-enabled device. MP3tunes offered free lockers with limited storage space
and premium lockers with expanded storage for a subscription fee. The defendant also offered
another feature of its web site called “Webload” that allowed a user to enter the web address of a

(^2727) Id. at 107-09/
(^2728) Flava Works, Inc. v. Gunter, 2011 U.S. Dist. LEXIS 82955 at 30-32 (N.D. Ill. July 27, 2011), rev’d, 689 F.3d
754 (7th Cir. 2012).
(^2729) Flava Works, Inc. v. Gunter, 689 F.3d 754 (7th Cir. 2012).
(^2730) 821 F. Supp. 2d 627 (S.D.N.Y. 2011).