Full opinion text
OPINION AND ORDER RONNIE ABRAMS, District Judge. Plaintiffs Capitol Records, LLC, Caroline Records, Inc., Virgin Records America, Inc. (collectively, “Capitol”), EMI Blackwood Music, Inc., EMI April Music, Inc., EMI Virgin Music Inc., ColgemsEMI Music, Inc., EMI Virgin Songs, Inc., EMI Gold Horizon Music Corp., EMI U Catalog, Inc., EMI Unart Catalog, Inc., Jobete Music Co., Inc. and Stone Diamond Music Corporation (collectively, “EMI” and, with Capitol, “Plaintiffs”) bring this copyright infringement action against Defendants Vimeo, LLC and Connected Ventures, LLC (collectively, “Vimeo”). Before the Court is Vimeo’s motion for summary judgment and Plaintiffs’ cross-motion for partial summary judgment. For the following reasons, each motion is granted in part and denied in part. 1. Background A. The Vimeo Website In 2004, employees of Connected Ventures, LLC, began developing an online platform that would enable users to upload, share and view original videos. (Defs.’ 56.1 ¶ 2.) The resulting website, called “Vimeo” and located at the URL http://vimeo.com (“the Website”), launched in 2005. (Id. ¶¶ 1-3, 6.) Vimeo differentiates itself from other video-sharing platforms by requiring that those who upload a video to the Website must have created, or at least participated in the creation of, the video. (Pis.’ 56.1 ¶¶29, 31.) As Vimeo’s President, Dae Mellencamp, explained, “Vimeo has become an online destination for filmmakers who want to share their creative works and personal moments.” (Declaration of Dae Mellencamp, Sept. 7, 2012 (“Mellencamp Deck”) ¶ 3.) The diverse array of videos on the Website includes, inter alia, animation, documentaries and personal home videos uploaded by, inter alia, artists, politicians, educational institutions and entertainment companies. (Id. ¶ 5; Defs.’ 56.1 ¶¶ 17, 54.) Vimeo has grown considerably since its inception in 2004. In 2009, when this action was filed, Vimeo had twenty employees. (Mellencamp Deck ¶ 22.) By July of this year, it had seventy-four employees. (Id.; Oral Argument Tr., July 18, 2013 (“Tr.”) at 4:24-25.) As of September 2012, Vimeo was one of the top 130 most-visited websites in the world and one of the top ten online distributors of web video. (Defs.’ 56.1 ¶ 16.) It has approximately 12.3 million registered users in forty-nine countries. (Id. ¶¶ 15, 18.) Each day, approximately 43,000 new videos are uploaded to Vimeo’s database, which now contains more than 31.7 million videos. (Id. ¶ 18.) B. How Vimeo Works Any Internet user may access and view videos on the Website free of charge. (Id. ¶ 7.) To upload a video, however, a user must register for an account on the Website. (Id. ¶ 9; Pis.’ 56.1 ¶ 23.) “Basic” registration can be obtained at no charge but requires a user to provide a user name, password and e-mail address and to agree to Vimeo’s Terms of Service. (Defs.’ 56.1 ¶ 9; Pis.’ 56.1 ¶23.) Basic registration affords users access to certain features on the Website, such as the ability to “like” or comment on videos. (Pis.’ 56.1 ¶ 23.) Alternatively, a user can purchase a “Vimeo Plus” or “Vimeo PRO” subscription that affords them additional benefits such as increased file storage and advanced customization options. (Defs.’ 56.1 ¶ 62.) The “vast majority” of Vimeo’s revenue comes from user subscription fees, although advertising sales are also a primary revenue source. (Id. ¶ 61.) When uploading a video, a user can assign the video a title, a description and a series of “tags” (i.e., keywords associated with the video). (Pis.’ 56.1 ¶ 13.) A user can make a video available to the general public or can limit its access through various privacy restrictions. (Id. ¶ 25.) For instance, a user can password-protect a video or establish a “private group” that limits access solely to group members and Vimeo employees. (Id. ¶¶ 25, 28.) In 2010, approximately 9.5% of videos on the Website had some form of privacy setting. (Id. ¶ 26.) To watch a video uploaded to the Website, a user simply selects the video, which initiates a “playback request.” (Defs.’ 56.1 ¶ 14.) The Website responds to the playback request by automatically “streaming” a copy of the requested video from Vimeo’s servers to the user’s device (e.g., laptop or cell phone) for viewing. (Declaration of Andrew Pile, Sept. 7, 2012 (“Pile Deck”) ¶ 22.) Streaming allows a user to begin watching a -video stored on Vimeo’s servers before the entire file has been transmitted. (Defs.’ 56.1 ¶ 14.) In addition, Vimeo permits a user to download a video to his or her own device unless the video’s uploader has disabled that functionality. (Id. ¶ 14; Pis.’56.1 ¶ 16; Pile Decl. ¶ 22.) A registered user can also interact with videos and other Website users in several ways. For instance, in addition to “liking” and commenting on videos, a registered user can subscribe to “groups” of users who share a common interest and can create or subscribe to “channels,” which are collections of videos based on theme. (Pis.’ 56.1 ¶ 19.) All users can search the Website’s index for available videos and can access its “Community Forums,” “Help Center,” “Staff Blog” and other pages on the Website that discuss, recommend and refer to specific videos, as well as to Vimeo’s practices and guidelines. (Id. ¶ 22.) C. Vimeo’s Content Restrictions and Monitoring Tools In order to register on the Website, a user must accept Vimeo’s Terms of Service, which are available at a clickable link in the footer of every page on the Website and on the Website’s “Help” page. (Defs.’ 56.1 ¶ 21.) By acknowledging the Terms of Service, the user agrees not to upload videos that infringe another’s rights. (Supplemental Declaration of Michael A. Cheah, Nov. 16, 2012 (“Supp. Cheah Decl.”) ¶ 11 & Exs. 6-10.) Vimeo also has “Community Guidelines” that provide additional content restrictions and a web page dedicated to its copyright policy, both of which are incorporated by reference into its Terms of Service. (Defs.’ 56.1 ¶¶ 22, 24; Pis.’ 56.1 ¶ 32.) The web page dedicated to its copyright policy, entitled “Vimeo.com DMCA (Copyright) Notifications and Counter-Notifications Process,” communicates Vimeo’s policies and procedures for notifications and counter-notifications pursuant to the Digital Millennium Copyright Act (“DMCA”). (Defs.’ 56.1 ¶24.) Lastly, each time a user uploads a video, the Website displays to the user the following three rules: (1) “I will upload only videos I created myself,” (2) “I will not upload videos intended for commercial use,” and (3) “I understand that certain types of content are not permitted on Vimeo.” (Declaration of Michael A. Cheah, Sept. 7, 2012 (“Cheah Decl.”) ¶¶ 8-9 & Ex. 3.) More information as to each rule is provided at a user’s request. (Id.) Acknowledgement of Vimeo’s Terms of Service notwithstanding, a user has the technical ability to upload any video content whether or not it complies with those Terms, and Vimeo does not pre-screen videos before they are uploaded to the Website. (Defs.’ 56.1 ¶¶ 11-12.) Vimeo instead purports to enforce its content restriction policies through its “Community Team.” (Id. ¶¶ 27-30.) The Community Team, which in 2012 comprised sixteen of Vimeo’s seventy-four employees, reviews videos suspected of violating Vimeo’s policies and can remove both videos and entire user accounts from the Website. (Id. ¶¶ 29-30; Mellencamp Decl. ¶ 22.) The Community Team is aided by a series of “Moderator Tools” — of which there were nearly forty in 2012 — that filter suspect videos on the Website which are then reviewed by the Community Team and other Vimeo staff several times each week. (Pis.’ 56.1 ¶¶ 124-26.) It is undisputed that Vimeo has terminated thousands of user accounts for uploading videos the content of which violated the Terms of Service. (Defs.’ 56.1 ¶ 30.) D. The Videos-In-Suit and Procedural History On December 10, 2009, Capitol and EMI — record and music publishing companies — filed separate complaints alleging, inter alia, direct, contributory and vicarious copyright infringement. The complaints each contain a schedule of URLs corresponding to a total of 199 videos that had been uploaded to the Website. (Id. ¶¶ 1-7, 69.) Plaintiffs own copyrights to musical recordings used in these 199 videos (hereinafter, “Videos-in-Suit”). It is undisputed for purposes of the instant motions that these musical recordings were used without authorization and infringed Plaintiffs’ copyrights. (Pis.’ 56.1 ¶ 7; Defs.’ Resp. 56.1 at n. 3.) On May 21, 2012, Plaintiffs sought leave to amend their complaints to add over 1,000 additional allegedly infringing videos. (Defs.’ 56.1 ¶¶ 70-71.) By order dated May 31, 2012, Judge Castel, to whom this ease was previously assigned, denied Plaintiffs’ application. (Dkt. No. 43.) Concerned that the proposed amendment would “require reopening of discovery and delay the timely adjudication of the proposed summary judgment motions,” Judge Castel directed that “[t]he motion to amend may be filed within 30 days of the Court’s ruling on summary judgment and the timeliness will be assessed as if the motion were made today.” (Id.) On September 7, 2012, Vimeo moved for summary judgment, asserting entitlement to “safe harbor” protection pursuant to the DMCA. On November 16, 2012, Plaintiffs cross-moved for partial summary judgment seeking a ruling that Vimeo is ineligible for such protection. The question before the Court is whether Vimeo is entitled to safe harbor protection pursuant to the DMCA. For the reasons set forth below, the Court finds that triable issues remain as to whether Vimeo is entitled to safe harbor protection as to the fifty-five of the 199 Videos-in-Suit that Vimeo employees interacted with or uploaded. Vimeo is entitled to summary judgment as to the remaining 144 Videos-in-Suit. II. Summary Judgment Standard “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “The moving party bears the burden of establishing the absence of any genuine issue of material fact.” Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “All ambiguities must be resolved in favor of the non-moving party and all permissible inferences from the factual record must be drawn in that party’s favor.” Id. at 340 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “When both sides have moved for summary judgment, each party’s motion is examined on its own merits, and all reasonable inferences are drawn against the party whose motion is under consideration.” Chandok v. Klessig, 632 F.3d 803, 812 (2d Cir.2011). “Each movant must present sufficient evidence to satisfy its burden of proof on all material facts.” Morris v. N.Y.C. Emps. Ret. Sys., 129 F.Supp.2d 599, 605 (S.D.N.Y.2001) (citing Barhold v. Rodriguez, 863 F.2d 233, 236 (2d Cir.1988)). III. Preliminary Matters Before turning to the merits of the parties’ substantive motions, the Court must address three evidentiary motions. See Colon v. BIC USA Inc., 199 F.Supp.2d 53, 68 (S.D.N.Y.2001) (“[T]he court must evaluate evidence for admissibility before it considers that evidence in ruling on a summary judgment motion.”). Specifically, the Court must dispose of: (1) Plaintiffs’ motion to strike portions of the Supplemental Declaration of Michael Cheah (“Supplemental Cheah Declaration”); (2) Plaintiffs’ request that the Court take judicial notice of, inter alia, newspaper articles, Vimeo press releases and screenshots of the Website and other video-sharing websites; and (3) Vimeo’s motion to strike Plaintiffs’ 56.1 statement. A. Plaintiffs’ Motion to Strike Plaintiffs first move to strike paragraphs 4, 6-9, 11, 15 and 19 of the Supplemental Cheah Declaration on the basis that the averments in those paragraphs regarding Vimeo’s infringement policies “lack foundation, are conclusory in nature, or otherwise are wholly unsupported.” (Plaintiffs’ Motion to Strike Portions of Supplemental Declaration of Michael A. Cheah (Dkt. 101) at 4.) In his Supplemental Declaration, Cheah describes the Website’s policies regarding the use of third-party copyrighted content in videos, its policies and procedures for DMCA compliance and Vimeo’s removal of the Videos-in-Suit. Affidavits submitted in support of or in opposition to a summary judgment motion must “be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4); see also Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir.2004). The Court rejects Plaintiffs’ assertion that the contents of Cheah’s Supplemental Declaration are unsupported. Cheah explicitly states in his declaration that he has personal knowledge of the averments at issue through his role as Vimeo’s General Counsel, in which he has responsibility for the “oversight and implementation of Vimeo’s copyright policies and compliance with the online safe-harbor provisions of the Digital Millennium Copyright Act.” (Cheah Decl. ¶ 1.) Courts have found that declarations or affidavits made on such knowledge satisfy Rule 56’s requirements. See, e.g., SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 138-39 (2d Cir. 2009) (finding that a witness’s affidavit stating that he was a former vice president of the defendants’ business and was “fully familiar with the facts and circumstances set forth” therein satisfied the requirements of Rule 56); Searles v. First Fortis Life Ins. Co., 98 F.Supp.2d 456, 461-62 (S.D.N.Y.2000) (A witness “may testify as to the contents of records she reviewed in her official capacity” in preparing her affidavit in connection with summary judgment.). Based on the foregoing, the Court concludes that a “reasonable trier of fact could believe the witness had personal knowledge.” United States v. Tocco, 135 F.3d 116, 128 (2d Cir.1998). Accordingly, Plaintiffs’ motion to strike is denied. B. Plaintiffs’ Request for Judicial Notice Plaintiffs also request that the Court take judicial notice of a number of documents submitted in connection with their summary judgment motion. Because the Court has not relied on these documents in resolving the summary judgment motions, the request is denied as moot. See Dobina v. Weatherford Int’l Ltd., 909 F.Supp.2d 228, 258-59 (S.D.N.Y.2012). C. Vimeo’s Motion to Strike Vimeo moves to strike Plaintiffs’ 56.1 statement on the grounds that it is not “a short and concise statement” and that it includes “non-material facts.” (Memorandum of Law in Support of Defendants’ Motion to Strike Plaintiffs’ Local Rule 56.1 Statement at 1.) Although Plaintiffs’ ninety-page, 403-paragraph 56.1 statement is certainly lengthy, the Court does not find it to be unduly so in light of the numerous and complex issues raised in this case and the large body of evidence Plaintiffs have supplied in connection with their motion. Accordingly, the Court denies Vimeo’s motion to strike Plaintiffs’ 56.1 statement. IV. The DMCA Congress enacted the DMCA in 1998 “to update domestic copyright law for the digital age.” Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 26 (2d Cir.2012). Title II of the DMCA, codified at 17 U.S.C. § 512, seeks to “preserve[ ] strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in a digital networked environment.” S. Rep. 105-190, at 20 (1998); H.R. Rep. 105-551(11), at 49 (1998). Congress recognized that “[i]n the ordinary course of their operations service providers must engage in all kinds of acts that expose them to potential copyright infringement liability.” S.Rep. No. 105-190, at 8 (1998). “[B]y limiting the liability of service providers, the DMCA ensures that the efficiency of the Internet will continue to improve and that the variety and quality of services on the Internet will continue to expand.” Id. In furtherance of these policy considerations, Title II of the DMCA “established a series of four ‘safe harbors’ that allow qualifying service providers to limit their liability for claims of copyright infringement.” Viacom, 676 F.3d at 27. “[A] finding of safe harbor application necessarily protects a defendant from all affirmative claims for monetary relief.” Id. at 41. “Because the DMCA safe harbors are affirmative defenses, [a defendant] has the burden of establishing that he meets the statutory requirements.” Columbia Pictures Industries, Inc. v. Fung, 710 F.3d 1020, 1039 (9th Cir.2013); see also WPIX, Inc. v. ivi, Inc., 691 F.3d 275, 278 (2d Cir.2012). To qualify for protection under any of the safe harbors, a party must first establish that it meets three threshold criteria. Viacom, 676 F.3d at 27. The party: “(1) must be a ‘service provider’ as defined by the statute; (2) must have adopted and reasonably implemented a policy for the termination in appropriate circumstances of users who are repeat infringers; and (3) must not interfere with standard technical measures used by copyright owners to identify or protect copyrighted works.” Wolk v. Kodak Imaging Network, 840 F.Supp.2d 724, 743 (S.D.N.Y.2012). If the service provider meets these threshold criteria, it must then establish the requirements of the safe harbor it invokes. Here, Vimeo asserts that it qualifies for safe harbor protection pursuant to § 512(c). Section 512(c)(1) provides: (c) Information residing on systems or networks at direction of users. (1) In general. A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider— (A)(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing; (ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material; (B) does not receive a financial benefit directly attributable to the infringing activity, in a case in which the service provider has the right and ability to control such activity; and (C) upon notification of claimed infringement as described in paragraph (3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity. Id. § 512(c)(1). Section 512(c)(2) further requires that service providers “designate[ ] an agent to receive notifications of claimed infringement” (commonly known as “takedown notices”) from copyright holders. Id. § 512(c)(2). V. Discussion A. Threshold Criteria 1. Service Provider The first threshold criterion requires Vimeo to demonstrate that it is a “service provider.” For purposes of the § 512(c) safe harbor, the DMCA defines “service provider,” in pertinent part, as “a provider of online services or network access, or the operator of facilities therefor.” 17 U.S.C. § 512(k)(l)(B). This definition “is clearly meant to cover more than mere electronic storage lockers.” Viacom, 676 F.3d at 39. Rather, it is “intended to encompass a broad set of Internet entities.” Wolk, 840 F.Supp.2d at 744. Indeed, one court commented that the DMCA defines “ ‘service provider’ ... so broadly that [it had] trouble imagining the existence of an online service that would not fall under the definitions.” In re Aimster Copyright Litig., 252 F.Supp.2d 634, 658 (N.D.Ill.2002), aff'd, 334 F.3d 643 (7th Cir.2003) (emphasis in original). Unsurprisingly, therefore, courts have consistently found that websites that provide services over and above the mere storage of uploaded user content are service providers pursuant to § 512(k)(l)(B). See, e.g., Obodai v. Demand Media, Inc., No. 11 Civ. 2503(PKC), 2012 WL 2189740, at *3 (S.D.N.Y. June 13, 2012) (website that publishes its own content in addition to hosting and sharing users’ content is a service provider); Wolk, 840 F.Supp.2d at 744 (“Because Photobucket offers a site that hosts and allows online sharing of photos and videos at the direction of users, Photobueket, like YouTube.com or Veoh. com, qualifies as a ‘service provider’ under § 512(k)(l)(B).”). The parties do not dispute that Vimeo is a provider of online services that hosts and distributes user material by permitting its users to upload, share and view videos. (Defs.’ 56.1 ¶ 6.) Even though Vimeo’s activities are not limited to such, the Court concludes that Vimeo qualifies as a service provider under § 512(k)(l)(B)’s expansive definition. 2. Repeat Infringer Policy The second threshold criterion requires Vimeo to demonstrate that it has adopted and reasonably implemented a policy for the termination, in appropriate circumstances, of users who are repeat infringers. Specifically, § 512(i)(l)(A) requires that a service provider seeking DMCA safe harbor protection show that it: has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers[.] § 512(i)(l)(A). To fulfill these requirements, “a service provider must (i) adopt a policy that provides for the termination of service access for repeat infringers; (ii) inform users of the service policy; and (iii) implement the policy in a reasonable manner.” Wolk, 840 F.Supp.2d at 744; see also Ellison v. Robertson, 357 F.3d 1072, 1080 (9th Cir.2004). As one court observed, “[t]he purpose of subsection 512(i) is to deny protection to websites that tolerate users who flagrantly disrespect copyrights.” Capitol Records, Inc. v. MPStunes, LLC, 821 F.Supp.2d 627, 637 (S.D.NY.2011), reconsideration granted on other grounds, 2013 WL 1987225 (S.D.N.Y. May 14, 2013). The following facts from the record inform the Court’s analysis of each of the three requirements set forth above: • From at or around Vimeo’s inception, Vimeo required users to agree to its Terms of Service, which contained language stating that users will not use the Website to infringe any copyright or other proprietary rights, before uploading a video. (Supp. Cheah Decl. ¶ 11 & Exs. 6-10.) • From at or around its inception, Vimeo’s Terms of Service contained language warning users that Vimeo reserves the right to remove videos and terminate user accounts for violations of the Terms of Service. (Id.) Beginning no later than May 5, 2008, the Terms of Service specifically warned that Vimeo “will terminate rights of subscribers and account holders in appropriate circumstances if they are determined to be repeat infringers.” (Id. ¶ 11 & Exs. 7-9.) As early as June 2007, Vimeo actually disabled user accounts upon discovery of infringing conduct. (Id. ¶ 8 & Ex. 4.) • From at or around its inception through mid-2008, Vimeo received approximately five or fewer take-down notices a month. (Defs.’ 56.1 ¶ 37.) Beginning in mid-2008, it received approximately five or fewer takedown notices a week. (Cheah Deck ¶ 30.) During the pre-mid2008 time frame, Vimeo employees, of which there were no more than twenty working full-time (Mellencamp Deck ¶ 22), would identify repeat infringers by reviewing e-mail records or recalling the names of users previously implicated in a take-down notice. (Cheah Deck ¶ 40.) Cheah, avers that user accounts violating the terms of service “were often terminated upon the receipt of the first DMCA takedown notice.” (Id.) • At some point after its inception, although the precise date is unclear, Vimeo began to employ a “three strikes” rule whereby it would terminate a user’s account if the user became the subject of three separate, valid takedown notices. (Id. ¶ 34.) Under this policy, takedown notices received within three days of one another are treated as a single instance of infringement. (Id.) The email address associated with the terminated account is added to a list of banned e-mail addresses that may not be used in connection with a new account. (Id. ¶ 38; Supp. Cheah Deck Ex. 4; Tr. at 10:11-15.) In addition, when Vimeo reviews a user account pursuant to a takedown notice that identifies allegedly infringing content in a video, it also reviews the other videos in that user’s account for additional violations of Vimeo’s Terms of Service. (Cheah Deck ¶ 39.) Finally, under this rule, any video that is removed pursuant to a takedown notice is placed on a “blocked video” list, which prevents any Vimeo user from re-uploading the same video file. (Id. ¶ 36; Tr. at 10:16-20.) • In October 2008, Vimeo began utilizing a “Purgatory Tool,” which facilitates the tracking of repeat infringers by collecting and maintaining all videos and accounts removed from the Website, including those removed due to DMCA takedown notices. (Pile Deck ¶¶ 30-31.) A video that is in Purgatory is no longer accessible to anyone except Vimeo employees with “Moderator status.” (Id. ¶ 32.) When a user account is placed in Purgatory, all of that user’s videos are automatically placed in Purgatory as well. (Id. ¶ 33.) Plaintiffs assert that Vimeo did not have any repeat infringer policy prior to the implementation of the Purgatory Tool in October 2008 and that the policy adopted thereafter was not communicated to its users or reasonably implemented. Contrary to these assertions, the Court finds that Vimeo has established each prong of the repeat infringer policy requirement. It addresses each in turn. a. Adoption of a Policy Vimeo must first establish that it adopted a policy providing for the termination of access for repeat infringers. This statutory requirement emanates from Congress’ concern that “those who repeatedly or flagrantly abuse their access to the Internet through disrespect for the intellectual property rights of others should know that there is a realistic threat of losing that access.” H.R. Rep. 105-551 pt. 2, at 61 (1998). Although the case law is sparse on what procedures are sufficient to establish the adoption of a repeat infringer policy, a court having had occasion to address the issue suggested that “[t]he fact that Congress chose not to adopt such specific provisions when defining a user policy indicates its intent to leave the policy requirements, and the subsequent obligations of the service providers, loosely defined.” Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090, 1101 (W.D.Wash.2004), overruled on other grounds Cosmetic Ideas, Inc. v. IAC/Interactivecorp, 606 F.3d 612 (9th Cir.2010). The Court agrees with the general sentiment expressed in Corbis that the threshold requirement of the adoption of a repeat infringer policy should not be an overly burdensome one to meet. At this stage of the analysis, it appears sufficient that Vimeo demonstrate that it took a clear position that those who chose to violate another’s copyright would not be permitted to avail themselves of the service Vimeo provides. The Court finds that Vimeo, from at or around its inception, espoused a policy providing for the termination of repeat infringers. Vimeo’s Terms of Service required users to “agree not to use the Service to ... upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights” and further advised that Vimeo reserved the right to remove videos and user accounts for violation of these Terms. (Supp. Cheah Decl. ¶¶ 9, 11 & Ex. 6.) This language reflects the adoption of a policy that users could, in appropriate circumstances, be terminated for uploading infringing content. That Vimeo adopted such a policy is further supported by emails dated between June 2007 and October 2008 demonstrating that Vimeo did in fact terminate accounts upon notice of repeat infringement and, indeed, did so upon receipt of a single takedown notice. (Supp. Cheah Decl. ¶¶8, 40 & Ex. 4.) As discussed further below, Vimeo’s policy became more structured and refined as Vimeo’s employee roster and user base grew, but the evidence establishes that Vimeo had a policy in place that provided for the termination of service for repeat (or even first-time) infringers from the company’s inception. The DMCA requires nothing more at this threshold stage. b. Informing Users of the Policy Section 512(i)(l) also requires that a service provider “inform[] subscribers and account holders of ... [its] policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.” This language has been interpreted to require that the service provider “put users on notice that they face exclusion from the service if they repeatedly violate copyright laws.” Corbis Corp., 351 F.Supp.2d at 1102. The statute, however, does not “suggest what criteria should be considered by a service provider, much less require the service provider to reveal its decision-making criteria to the user.” Id. In Obodai v. Demand Media, Inc., No. 11 Civ. 2503(PKC), 2012 WL 2189740 (S.D.N.Y. June 13, 2012), the repeat infringer requirement was met where the defendant’s Terms and Conditions provided contact information for a DMCA designated agent, provided that the defendant could terminate “any Account or user for repeated infringement ... and [ ] reserve[d] the right to terminate an Account or user for even one infringement.” Id. at *4; see also Perfect 10, Inc. v. CCBill, LLC, 340 F.Supp.2d 1077, 1088-89 (C.D.Cal.2004) (policy stating a user’s access may be terminated deemed sufficient communication). From its inception, as in Obodai, Vimeo provided contact information for its DMCA designated agent, required registered users to agree not to infringe others’ copyrights, and notified users that their accounts may be terminated for violation of the Terms of Service. The Court rejects Plaintiffs’ argument that Vimeo cannot establish the second prong because it did not communicate to its users a specific “repeat” infringer policy until 2011. While it is undisputed that Vimeo’s formal “Repeat Infringer Policy” was not published to the Website until in or about January 2011, Vimeo communicated a more general policy — threatening account termination upon any violation of the Terms of Service including single or repeated instances of infringement — from at or around its inception, and this suffices to meet the second prong of this threshold requirement. Accordingly, the Court finds that Vimeo adequately communicated its policy to its users. c. Reasonable Implementation of the Policy Finally, § 512(i)(l)(A) requires that a service provider’s repeat infringer policy be “reasonably implemented.” While the statute does not define “reasonably implemented,” the case law provides that a reasonably implemented policy can utilize a “variety of procedures” and does not require that the service provider “affirmatively police its users for evidence of repeat infringement.” Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1109-11 (9th Cir.2007). Another court has observed that § 512(i) “does not impose an obligation on service providers to track their users in any particular way.” Perfect 10, Inc. v. Google, Inc., No. CV 04-9484(AHM), 2010 WL 9479059, at *5 (C.D.Cal. July 26, 2010). “A substantial failure to record [infringers]” may, however, “raise a genuine issue of material fact as to the implementation of the service provider’s repeat infringer policy.” See CCBill, 488 F.3d at 1110; Ellison, 357 F.3d at 1080 (unreasonably implemented policy where defendant “allowed notices of potential copyright infringement to fall into a vacuum and to go unheeded”); In re Aimster Copyright Litig., 334 F.3d 643, 655 (7th Cir.2003) (policy was not reasonably implemented because “by teaching its users how to encrypt their unlawful distribution of copyrighted materials [defendant] disable[d] itself from doing anything to prevent infringement”). Implementation also has been deemed unreasonable when service providers failed to terminate users who “repeatedly or blatantly infringe copyright.” CCBill, 488 F.3d at 1109; Datatech Enters. LLC v. FF Magnat Ltd., No. C 12-04500(CRB), 2013 WL 1007360, at *6 (N.D.Cal. Mar. 13, 2013) (“woefully inadequate” policy demonstrated by evidence “showing] that when [defendant] learned that particular users were engaged in extensive repeat infringement ... [defendant] regularly declined to ban them despite requests from copyright holders”). The Court finds that Vimeo’s repeat infringer policy was reasonably implemented. In its nascent years, Vimeo employees identified repeat infringers by reviewing e-mail records or recalling the names of users previously implicated in a takedown notice. (Cheah Decl. ¶ 40.) As Cheah avers, user accounts violating the Terms of Service “were often terminated upon the receipt of the first DMCA take-down notice,” (id), and as early as June 2007, Vimeo disabled user accounts upon discovery of infringing conduct, (Supp. Cheah Decl. ¶ 8 & Ex. 4). This evidence establishes that Vimeo reasonably implemented its policy from the beginning. The Court’s finding of reasonableness is also informed by the evidence of Vimeo’s business circumstances as they evolved during the relevant period. That is, the policies Vimeo implemented in the first several years of its operation, as described above, were reasonable ones in light of the fact that Vimeo was, at the time, a small service provider, the twenty full-time employees of which were tasked with processing only a trickle (zero to five) of takedown requests per month. The evidence reflects that as the flow of those requests increased, Vimeo’s policy became more robust — first in the form of a “three strikes” rule and a blocked video list, implemented at some point after Vimeo’s inception, and eventually in the form of the “Purgatory” tool, implemented later in October 2008. That Vimeo’s enforcement mechanisms advanced in step with the realities of its growing business further supports the reasonableness of its implementation system. Plaintiffs advance several arguments as to why Vimeo’s repeat infringer policy has not been reasonably implemented. The Court finds each to be unavailing. Plaintiffs argue that Vimeo’s failure to establish an adequate repeat infringer policy resulted in repeat and blatant infringers remaining on the Website. Plaintiffs rely on the deposition testimony of Dalas Verdugo, a “Community Director” at Vimeo who assisted with DMCA compliance beginning in late 2006 or 2007. (Cheah Decl. ¶ 18; Cheah Dep. 118:17-120:8.) When asked whether he could find a list of users who had been banned as repeat infringers, Verdugo answered, “I don’t believe I would be able to do that and I’m not sure who would be able to do that.” (Declaration of Russell J. Frackman (1) In Support of Plaintiffs’ Motion for Partial Summary Judgment, and (2) In Opposition to Defendants’ Motion for Summary Judgment, Oct. 12, 2012 (“Frackman Decl.”) Ex. 5 (“Verdugo Dep.”) at 137:4-12.) Additionally, when asked how he ensured that the Videos-in-Suit, which were removed following the filing of the Complaint, would not be reposted in the future, Verdugo responded that he was “not aware of something that would allow [him] to do that.” (Id. at 18:24-19:10.) This statement reveals that Verdugo was unaware of Vimeo’s “blocked video list,” which it describes as a mechanism for ensuring that a removed infringing video is not re-posted. Verdugo’s testimony certainly demonstrates a troubling ignorance of Vimeo’s tools for terminating infringing activity. Implementation, however, need not be perfect. Rather, by the terms of the statute, it need only be “reasonable.” In any event, even assuming one could infer from Verdugo’s apparent ignorance of aspects of Vimeo’s tools for terminating infringement that Vimeo’s overall implementation of its policy was affected in some way, such isolated comments, while certainly unfortunate, do not reflect the sort of “substantial failure,” see CCBill, 488 F.3d at 1110, that courts have held gives rise to a genuine dispute as to the reasonableness of a repeat infringer policy. See Ellison, 357 F.3d at 1080; Datatech, 2013 WL 1007360, at *6; Aimster, 252 F.Supp.2d at 659 (service provider failed to reasonably implement repeat infringer policy when it actively blocked the collection of information on infringers and voluntarily implemented an encryption scheme rendering impossible a determination of which users were engaged in infringement). Indeed, Verdugo himself elsewhere testified as to the process Vimeo takes “in general” in response to takedown notices: “when a request is received, it’s forwarded to a lawyer at Vimeo who reviews the request and determines whether it[’]s sufficient, and if it[’]s sufficient, then the material is removed as per the DMCA.” (Verdugo Dep. 112:20-113:7.) That process is, no doubt, a reasonable one. Plaintiffs also contend that Vimeo’s policy of blocking only the e-mail address of a repeat infringer is insufficient because it allows a repeat infringer to set up another account using a different e-mail address. They rely on A & M Records, Inc. v. Napster, Inc., C 99-05183(MHP), 2000 WL 573136 (N.D.Cal. May 12, 2000), in which the court concluded that the defendant’s repeat infringer policy was insufficient in part because it blocked only an infringer’s password, rather than his or her IP address, after terminating the account. Id. at *9-10. At least one court has since distinguished A & M Records on the basis that the record in that case included evidence showing that the service provider could— and sometimes did — block IP addresses. Io Grp. Inc. v. Veoh Networks, Inc., 586 F.Supp.2d 1132, 1143-45 (N.D.Cal.2008). The Io court concluded that without testimony describing a more feasible or effective alternative, the defendant’s policy of blocking a terminated user’s e-mail account was reasonable. See id. Here, too, the Court finds no evidence that Vimeo’s implementation of its repeat infringer policy, which blocks e-mail addresses but not 17 addresses, is unreasonable. See id. at 1144 (“[T]he hypothetical possibility that a rogue user might reappear under a different user name and identity does not raise a genuine issue as to the implementation of Veoh’s policy.”). Finally, Plaintiffs contend that Vimeo’s repeat infringer policy was inadequate because it treated all notices received within a three-day period as a single instance of infringement. Plaintiffs argue that this policy “would have permitted a user to be subject to a notice on day one and have his infringing works removed, then all of the same works re-posted on day two and have all of them removed, and then all of the same works re-posted on day three and as a result incur only one strike.” (Memorandum of Law of Plaintiffs (1) In Support of Motion for Partial Summary Judgment on Defendants’ Defense under Section 512 of the DMCA, and (2) In Opposition to Defendants’ Motion for Summary Judgment, Oct. 12, 2012 (“Pis.’ Oct. 12 Mem.”) at 46.) As an initial matter, Plaintiffs provide no evidence that Vimeo users actually engage in such conduct. In any event, taking Plaintiffs’ hypothetical concern to its logical extreme, users who feverishly uploaded previously-removed content on a daily basis would still incur their third strike in little over a week. Finally, simply because, as Plaintiffs point out, a YouTube user may earn two separate strikes for takedown notices received only three hours apart pursuant to a policy this Court has found to be reasonable, see Viacom Int’l, Inc. v. YouTube, Inc., 718 F.Supp.2d 514, 523 (S.D.N.Y.2010), it does not follow that Vimeo’s somewhat more lenient policy (three days, rather than two hours), creates a factual issue as to the reasonableness of that policy. Having considered Plaintiffs’ arguments regarding the adoption, communication and reasonable implementation of Vimeo’s repeat infringer policy, the Court concludes that Vimeo meets the threshold requirement of § 512(i)(l)(A). 3. Interference with Standard Technical Measures The final threshold criterion is that a service provider seeking protection under a DMCA safe harbor must not interfere with “standard technical measures” as defined by § 512(i)(2), which provides that: the term “standard technical measures” means technical measures that are used by copyright owners to identify or protect copyrighted works and— (A) have been developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process; (B) are available to any person on reasonable and nondiscriminatory terms; and (C) do not impose substantial costs on service providers or substantial burdens on their systems or networks. § 512(i)(2). “Refusing to accommodate or implement a ‘standard technical measure’ exposes a service provider to liability.” Viacom, 676 F.3d at 41. Although Plaintiffs do not explicitly argue that Vimeo fails to meet this requirement, they do claim that Vimeo’s privacy settings prevent copyright owners from collecting information needed to issue a takedown notice. Even if Plaintiffs’ claim is true, however, it is insufficient to demonstrate a service provider’s failure to meet this threshold requirement because Plaintiffs have not identified a “standard technical measure” that comports with the definition above. See Viacom, 676 F.3d at 41 (“In this case, the class plaintiffs make no argument that the content identification tools ... constitute ‘standard technical measures,’ such that YouTube would be exposed to liability under § 512(i).”). Accordingly, although Plaintiffs’ evidence regarding Vimeo’s privacy settings may be relevant to other provisions of the DMCA, see infra § V.B.3, privacy settings do not constitute interference with standard technical measures. See Obodai, 2012 WL 2189740, at *5. B. The Safe Harbor Requirements Pursuant to § 512(c) Having satisfied the threshold criteria, Vimeo must next establish that it meets the requirements of § 512(c), which apply to any claims “for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.” § 512(c)(1). Plaintiffs argue that Vimeo has not satisfied the requirements for safe harbor protection pursuant to § 512(c) because: (1) the infringing content in the Videos-in-Suit was not “by reason of the storage at the direction of a user”; (2) Vimeo had actual or “red flag” knowledge of infringement, or was willfully blind to it; (3) Vimeo had the right and ability to control the infringement and financially benefited from it; and (4) Vimeo did not expeditiously remove infringing material. Each argument will be discussed in turn. 1. “Storage at the Direction of a User” Section 512(c) only provides a defense against infringement that is “by reason of the storage at the direction of a user.” § 512(c)(1). The applicable legislative history provides that “[[Information that resides on the system or network operated by or for the service provider through its own acts or decisions and not at the direction of a user does not fall within the liability limitation of subsection (c).” S.Rep. No. 105-190, at 43 (1998). Plaintiffs argue that the infringing content at issue was not “storfed] at the direction of a user” because: (1) Vimeo employees uploaded certain of the Videos-in-Suit; and (2) videos on the Website may be downloaded and, according to Plaintiffs, are thus not “stor[ed]” as that word is used in § 512(c)(1). a. Employee-Uploaded Videos It is undisputed that ten of the 199 Videos-in-Suit were uploaded by users who were at the time, or later became, Vimeo employees. To determine whether these employee-uploaded videos may be deemed to have been stored “at the direction of a user,” the Court must determine whether, under traditional principles of agency law, Vimeo’s employees stored their videos as independent “users” or rather on behalf of the company as Vimeo staff. See Gershwin Publ’g Corp. v. Columbia Artists Mgmh, Inc., 443 F.2d 1159, 1161-62 (2d Cir.1971). Arguing that the employee-uploaded videos were being stored at the direction of Vimeo, Plaintiffs rely on Columbia Pictures Industries, Inc. v. Fung, No. CV 06-5578(SVW), 2009 WL 6355911 (C.D.Cal. Dec. 21, 2009), ajfd in part and modified, 710 F.3d 1020 (9th Cir.2013), which found an employer liable for inducement of infringement in part as a result of its employees’ actions. Id. at * 13. The defendants in Fung, which included several websites, employed “moderators” to run day-to-day activity on their forums. These moderators “gave technical assistance and aid in the organized forum discussions that furthered the third parties’ infringement using the sites.” Id. The court conducted the following agency analysis to determine that the moderators’ conduct extended to the defendant websites, explaining that: [u]nder common law principles of agency, the “moderators” were the Defendants’ agents with respect to their interactions with the online message boards and forums. Even though there is no evidence that the moderators were specifically authorized to post messages in these forums, the websites’ act of designating them as “moderators” and providing them with specific forum-related powers leads a “third party reasonably [to] believe[ ] the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations.” Restatement (Third) of Agency, § 2.03 (2006) (describing “apparent authority”). Id. at * 13 n. 21. Here, Plaintiffs cite evidence that Vimeo employees serve as an “editorial voice” for the Website, (Verdugo Dep. 31:25-32:13; Frackman Decl. Ex. 12 at Dep. Ex. 199), and emphasize that the web pages displaying these videos indicated that the video was posted by a Vimeo employee. In all but two of the videos, the web page also included the employee’s name. (Frackman Decl. Ex. 17.) Further, in several instances, a yellow box containing the word “STAFF” — the so-called “staff badge”— appeared next to the employees’ user names, as it does for all actions taken by an employee on the Website. (Id.; Pis.’ 56.1 ¶ 51.) Based on this evidence, Plaintiffs argue that the ten employee-uploaded videos may not fairly be characterized as stored at the direction of users but rather must be characterized as stored at the direction of Vimeo through common law agency principles. In response, Vimeo directs the Court to Capitol Records, Inc. v. MPStunes, LLC, 821 F.Supp.2d 627 (S.D.N.Y.2011), reconsideration granted on other grounds, 2013 WL 1987225 (S.D.N.Y. May 14, 2013), in which Judge Pauley concluded that the employees’ personal use of the defendant’s website could not be the basis of a direct infringement claim against the defendant. Id. at 649. In MPStunes, it was undisputed that executives and employees of the. defendant website downloaded and stored music using the website. Id. Citing testimony that the employees “maintained private accounts and used MP3tunes lockers for their personal benefit,” Judge Pauley denied summary judgment to the plaintiff on its direct infringement claim because “a genuine dispute exist[ed] as to whether any of the [ ] songs in question were downloaded by employees in the course of their employment.” Id. On balance, it is less clear to the Court than it was to the court in Fung that a user would conclude that the employeeuploader was acting on behalf of the service provider. Reasonable minds could differ, as in MPStunes, as to the extent to which the videos at issue here were uploaded by Vimeo employees in their personal capacities as opposed to as agents of Vimeo. Accordingly, a triable issue has been raised with respect to whether the employees were storing their content as “users” within the meaning of § 512(c) or as employees acting within the scope of their employment. b. Downloading Plaintiffs next argue that because Vimeo permits downloading of videos on the Website, it does not provide “storage” pursuant to § 512(c). Plaintiffs rely on language from Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F.Supp.2d 1197 (C.D.Cal.2007), which observed that downloading allowed users to “obtain ‘perfect copies’ of [plaintiffs’ work that can be inexpensively reproduced and distributed ad nauseam,” and thus concluded that the plaintiff had shown irreparable harm for purposes of granting a permanent injunction. Id. at 1218. Although that proposition is certainly true and Grokster highlights the challenges that copyright holders face in the digital age in which their works may be downloaded with ease to users’ devices, these general principles do not govern the inquiry at hand— i.e., whether service providers that permit users to download content are per se ineligible for safe harbor protection. Indeed, in UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006 (9th Cir.2013), the Ninth Circuit noted that “access-facilitating processes” such as downloading are encompassed in § 512(c)’s language “by reason of the storage at the direction of a user.” Id. at 1018-19. Plaintiffs have provided no case law — and the Court is not aware of any— holding or even suggesting that a service provider must be denied DMCA safe harbor protection because it allows its users to download content. The Court accordingly declines to deny safe harbor protection on this basis. 2. Knowledge of Infringement The § 512(c) safe harbor is available only to a service provider that does not have knowledge of infringement on its website. § 512(c)(1). Specifically, the statute provides that a service provider may be disqualified from safe harbor protection if it possesses one of two types of knowledge. First, the service provider must not have “actual knowledge that the material ... on the system or network is infringing.” § 512(c)(1)(A)®. Second, even without actual knowledge, a service provider may be disqualified if it was “aware of facts or circumstances from which infringing activity [was] apparent.” § 512(c)(l)(A)(ii). This second category is often referred to as “red flag” knowledge or awareness. In addition, “the willful blindness doctrine may be applied, in appropriate circumstances, to demonstrate knowledge or awareness of specific instances of infringement under the DMCA.” Viacom, 676 F.3d at 35. a. Actual or “Red Flag” Knowledge In Viacom International, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir.2012), the Second Circuit clarified the relationship between actual and red flag knowledge. First, the court affirmed the district court’s holding that “the statutory phrases ‘actual knowledge that material ... is infringing’ and ‘facts or circumstances from which infringing activity is apparent’ [both] refer to ‘knowledge of specific and identifiable infringement.’ ” Id. at 30 (quoting Viacom, 718 F.Supp.2d at 523). The court next explained that although both the actual and red flag knowledge provisions apply only to specific instances of infringement, they each “do independent work.” Id. at 31. It explained as follows: The difference between actual and red flag knowledge is thus not between specific and generalized knowledge, but instead between a subjective and an objective standard. In other words, the actual knowledge provision turns on whether the provider actually or “subjectively” knew of specific infringement, while the red flag provision turns on whether the provider was subjectively aware of facts that would have made the specific infringement “objectively” obvious to a reasonable person. Id. The Second Circuit ultimately vacated the district court’s grant of summary judgment in favor of the defendant because it was “persuaded that the plaintiffs may have raised a material issue of fact regarding YouTube’s knowledge or awareness of specific instances of infringement.” Id. at 34. Viacom had presented evidence including e-mails among YouTube executives discussing uploaded content that appeared to be “clearly infringing, official broadcast footage” and “blatantly illegal.” Id. The court held that “a reasonable juror could conclude that YouTube had actual knowledge of specific infringing activity, or was at least aware of facts or circumstances from which specific infringing activity was apparent.” Id. Accordingly, the Second Circuit remanded, instructing the district court to determine “whether any specific infringements of which YouTube had knowledge or awareness corresponded] to the clips-in-suit.” Id. To demonstrate that Vimeo had actual or red flag knowledge of the infringing content in the Videos-in-Suit, Plaintiffs point to evidence that Vimeo employees interacted with some of the videos using various features available to them on the Website. Specifically, Plaintiffs note the fact that Vimeo employees: • Entered comments on the designated web pages of some of the Videos-in-Suit. Any registered user may comment on a video. (Frackman Decl. ¶ 8 & Ex. 18; Pis.’ 56.1 ¶ 19.) • “Liked” some Videos-in-Suit by clicking a virtual button. Any registered user may “like” a video. (Frackman Decl. ¶ 8 & Ex. 18.) • Placed some Videos-in-Suit on channels. (Supplemental Declaration of Andrew Pile, Nov. 16, 2012 (“Supp. Pile Decl.”) ¶ 16; Pis. 56.1 ¶ 19.) Any user can create a channel or place a video on an existing channel, although some channels (e.g., the “Staff Picks” and ‘Vimeo HD” channels) can only be created and added to by employees. (Pis.’ 56.1 ¶¶ 341-42.) • “Whitelisted” some Videos-in-Suit by disabling a function that allows users to “flag” a video he or she believes violates Vimeo’s Terms of Service. (Supp. Pile Decl. ¶ 5.) Only staff members may whitelist videos. (Frackman Decl. Ex. 19; Declaration of James D. Berkley, Oct. 12, 2012 (“Berkley Decl.”) ¶ 38.) • “Buried” some Videos-in-Suit by preventing them from appearing on the Website’s “Discovery” tab, through which logged-in users may access a selection of currently popular videos. (Pis.’ 56.1 ¶ 138.) The Discovery tab appears to logged-in users on the Website’s home page. (Id.) Only staff members may bury videos. (Supp. Pile Decl. ¶ 2.) • Reviewed some uploaded Videos-in-Suit in “Plus” users’ accounts. (Frackman Decl. Ex. 3 (“Allen Dep.”) at 164:15-166:12 & Ex. 85.) A summary exhibit submitted by Plaintiffs indicates that Vimeo employees interacted, in one or more of the above-described ways, with fifty-five of the 199 Videos-in-Suit. (Supplemental Declaration of James D. Berkley, Dec. 21, 2012 (“Supp. Berkley Decl.”) Ex. 1.) These videos unlawfully incorporated copyrighted music by well-known artists such as The Beatles, The Beach Boys, The Jackson 5, Radiohead, Beyonce, Usher and Jay-Z. Plaintiffs’ chart reflects that Vimeo employees provided comments or “liked” twenty-six of the fifty-five videos, placed two on channels, “whitelisted” twenty and “buried” four. (Id.)'Twenty-nine of these videos were uploaded by Plus users. (Id.) Included in the fifty-five videos are the ten employee-uploaded videos previously discussed (see supra § V.B.l.a) for which there is a triable issue as to storage “at the direction of a user.” (Id.) Plaintiffs claim that Vimeo employees’ interactions with these fifty-five Videos-in-Suit necessitates a determination that Vimeo had actual or red flag knowledge of the videos’ infringing content. The Court disagrees. Despite the fact that these interactions are undisputed and that most, if not all, of the copyrighted songs used in the videos would be characterized by many as popular, and in some cases legendary — indeed, it is difficult to think of a song more iconic than The Beatles’ “All You Need is Love” — the Court is not prepared to hold that this automatically compels the conclusion that the service provider, through its employees, was aware of facts and circumstances that would make it objectively obvious to a reasonable person that those videos were infringing. Rather, the Court finds that a triable issue remains as to whether, under the totality of the circumstances, this standard is met as to each of the fifty-five videos in question. In so doing, the Court is also unwilling to adopt Vimeo’s argument that it has met its burden with regard to the actual or red flag knowledge prong of the statute. Vimeo has not presented any evidence disputing that its employees interacted with these videos in the above-mentioned ways but rather argues that proof of these interactions is insufficient to raise a triable issue, let alone to warrant summary judgment for Plaintiffs. It contends that some evidence of its employees’ interactions with the Videos-in-Suit does not suffice to prove that the employees actually watched the videos, or that, even if they did watch them, they would have acquired actual or red flag knowledge. Indeed, at oral argument, Vimeo’s counsel suggested that an email from a user stating, “I just uploaded to Vimeo a complete rip of a feature-length film that I didn’t make at the following URL and I didn’t have permission to do it,” would be a “reasonable” example of information sufficient to supply a service provider with red flag knowledge. (Tr. at 28:20-29:2.) The Court declines to set the bar for a service provider’s acquisition of such knowledge quite so high. Although it is conceivable that a Vimeo employee “liked,” commented on or otherwise interacted with a video without actually watching it — a proposition the Court finds dubious — Vimeo has presented no evidence indicating that this is the case as to any of the videos in question. To the contrary, Vimeo does not dispute that videos placed on the “Staff Picks” channel were watched by the employees who selected them. (Pis.’ 56.1 ¶ 118.) And at least one Vimeo employee, Jonathan Marcus, testified that he watched the videos that he “liked.” (Frackman Decl. Ex. 9 (“Marcus Dep.”) at 92:9-16; Declaration of Katie McGregor, Nov. 16, 2012 (“McGregor Deck”) ¶ 2.) The Court is further unpersuaded by Vimeo’s contention that, even if its employees did watch the videos they interacted with, they could not have obtained actual or red flag knowledge that the videos contained infringing content as a matter of law. It is of course true that “commercially produced music in a video ... does not constitute per se copyright infringement,” and that copyrighted music could be legally used in a video for a variety of reasons “such as when the material in question is used with the permission of the rights holder or in a manner that constitutes fair use.” (Defendants’ Opposition to Plaintiffs’ Motion for Partial Summary Judgment and Reply in Further Support of Defendants’ Motion for Summary Judgment Pursuant to the DMCA Safe Harbor, Nov. 16, 2012 (“Defs.’ Nov. 16 Mem.”) at 16.) See also Shelter Capital, 718 F.3d at 1021 (“[Cjontrary to UMG’s contentions, there are many music videos that could in fact legally appear on Veoh.”). It is also true, as courts have observed, that a service provider may not be able to determine whether a particular work is infringing solely by the act of viewing it. See CCBill, 488 F.3d at 1114 (rejecting argument that a service provider’s knowledge that its service hosted websites named “illegal.net” and “stolencelebritypic.com” amounted to “red flag” knowledge of infringement); Viacom, 718 F.Supp.2d at 524 (observing that service providers “cannot by inspection determine whether the use has been license