dmca-safe-harbor-analysis.docx

1017-00003 · Aurelius Global Media Group · Legal Analysis & Strategy

dmca-safe-harbor-analysis.docx DOCUMENT Litigation

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CALDERWOOD & HARKNESS LLP 1999 Avenue of the Stars, Suite 3100 Los Angeles, California 90067 Telephone: (310) 555-7200

MEMORANDUM

I. Executive Summary

This memorandum analyzes whether StreamNow Holdings, Inc. ("StreamNow"), a Delaware corporation (File No. 7291843) headquartered at 3400 Wilshire Boulevard, Suite 1800, Los Angeles, California 90010, can invoke the safe harbor protections of the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 512, as a defense to copyright infringement claims brought by Aurelius Global Media Group PLC ("Aurelius" or "AGMG"). The infringement claims arise from StreamNow's unauthorized reproduction, distribution, and public performance of 217 Aurelius-owned audiovisual works over a 22-month period, running from approximately April 1, 2024, through January 31, 2026. These works encompass some of Aurelius's most commercially valuable intellectual property, including titles from the "Meridian" franchise, the "Iron Compass" series, and the critically acclaimed "Thornfield" period drama catalog.

Conclusion: Based on the factual record developed to date — including the StreamNow Platform & Business Model Memorandum (dated February 28, 2026), the CipherTrace Forensic Analysis Summary (dated March 5, 2026), and relevant correspondence between the parties — it is our firm conclusion that StreamNow does not qualify for protection under any of the four DMCA § 512 safe harbor categories. StreamNow is not a passive hosting service, storage provider, information location tool, or mere conduit for transitory communications. To the contrary, StreamNow actively curates, licenses (or purports to license), and monetizes the infringing content on a large commercial scale. StreamNow exercises editorial control over catalog selection, pricing tiers, and geographic availability across 14 countries. It sublicenses content bundles to at least four third-party Free Ad-Supported Streaming Television ("FAST") channel operators. And it derives substantial direct financial benefit from the infringing activity, including an estimated $38.6 million in total attributable revenue from the 217 Aurelius titles over the 22-month period at issue.

StreamNow's anticipated reliance on the purported Content Distribution Agreement with Meridian Digital Distributors, LLC ("MDD"), allegedly executed on March 15, 2024, does not transform StreamNow into a passive intermediary eligible for safe harbor protection. Rather, that agreement confirms StreamNow's role as an active licensee and distributor — a party that affirmatively negotiated for, acquired, and commercially exploited copyrighted content through its own business operations. The DMCA safe harbor provisions were never intended to shield such entities from copyright infringement liability.

This memorandum sets forth the detailed legal and factual basis for these conclusions. It is intended to support Calderwood & Harkness's pre-suit strategy, the formal demand letter to StreamNow, and any subsequent litigation before the U.S. District Court for the Central District of California.

II. Scope and Purpose

This memorandum is prepared in connection with Calderwood & Harkness LLP's pre-suit assessment and anticipated formal demand on behalf of Aurelius Global Media Group PLC against StreamNow Holdings, Inc. The engagement encompasses claims for copyright infringement under 17 U.S.C. §§ 106, 501, and related provisions of the Copyright Act, as well as potential state-law claims that are the subject of separate analysis.

The specific purpose of this memorandum is to preemptively evaluate and rebut any DMCA safe harbor defense that StreamNow or its outside counsel, Grantham Roth & Pearce LLP (lead partner Victoria Langford), may assert in response to the formal demand or in subsequent litigation before the U.S. District Court for the Central District of California. Given the magnitude of the infringement at issue — 217 titles generating an estimated $38.6 million in attributable revenue — and the sophistication of StreamNow's operations, it is anticipated that StreamNow will advance every available defense, including an argument that it qualifies for DMCA safe harbor protection as a technology "platform" that aggregates content from third-party providers. This memorandum demonstrates that such an argument is without merit on both the facts and the law.

This analysis should be read in conjunction with the following related work product:

• StreamNow Platform & Business Model Memorandum (dated February 28, 2026), which provides a comprehensive overview of StreamNow's corporate structure, technology infrastructure, content acquisition processes, and revenue model.

• CipherTrace Forensic Analysis Summary (dated March 5, 2026), prepared by CipherTrace Analytics, LLC (engagement lead: Dr. Nathan Frey), which details the content fingerprinting methodology, viewership data, and revenue attribution analysis underlying the $38.6 million attributable revenue figure.

• MDD–StreamNow Content Distribution Agreement Analysis Memorandum (dated March 2, 2026), which analyzes the terms of the purported Content Distribution Agreement between MDD and StreamNow and its legal insufficiency as a basis for StreamNow's claimed distribution rights.

Unless otherwise specified, all statutory references in this memorandum are to Title 17 of the United States Code. All monetary figures are expressed in U.S. dollars unless otherwise indicated.

III. Factual Background

The following factual background is drawn from publicly available information, documents produced in the course of Calderwood & Harkness's investigation, communications between the parties, and the CipherTrace Forensic Analysis Summary. This section provides context necessary for the legal analysis that follows; additional factual detail may be found in the referenced appendices.

A. The Parties

1. Aurelius Global Media Group PLC

Aurelius Global Media Group PLC is a publicly traded media and entertainment conglomerate headquartered in London, United Kingdom. Aurelius is registered with Companies House under Registration Number 08724561 and is listed on the London Stock Exchange's AIM market under the ticker symbol AGLM. For the fiscal year ended December 31, 2025, Aurelius reported consolidated revenue of approximately £1.87 billion (approximately $2.36 billion at prevailing exchange rates).

Aurelius owns and controls one of Europe's largest independently held content libraries, comprising over 4,200 film and television titles. The library includes several marquee properties of exceptional commercial and cultural value, including:

• The "Meridian" franchise, consisting of six feature films with a combined global box office of approximately $1.43 billion. The Meridian franchise is one of the highest-grossing UK-originated film series of the last decade and continues to generate significant licensing and merchandising revenue worldwide.

• The "Iron Compass" series, a critically acclaimed action-drama television series spanning four seasons and 48 episodes. The series averaged approximately 9.2 million UK viewers per episode during its original broadcast run and has generated substantial international licensing revenue, including sales to major U.S. streaming platforms.

• The "Thornfield" period drama catalog, comprising 12 titles that have collectively won seven British Academy of Film and Television Arts ("BAFTA") awards. The Thornfield catalog is widely regarded as among the finest examples of British period drama and commands premium licensing fees in international markets.

Aurelius operates in the United States through its wholly-owned Delaware subsidiary, Aurelius Media Americas, Inc. ("AMA"), which maintains its principal office at 1900 Avenue of the Stars, Suite 2200, Los Angeles, California 90067. AMA holds the exclusive U.S. distribution rights for the Aurelius content library and administers licensing relationships with U.S.-based distributors, broadcasters, and streaming platforms.

2. StreamNow Holdings, Inc.

StreamNow Holdings, Inc. is a Delaware corporation that operates a streaming media platform offering subscription-based and advertising-supported (AVOD) video-on-demand services. StreamNow is privately held, with its majority equity position — approximately 62% on a fully diluted basis — held by Pinnacle Ventures Fund III, LP, a San Francisco-based growth equity fund managed by Pinnacle Ventures Management III, LLC. Pinnacle Ventures led StreamNow's $145 million Series C financing round, which closed in June 2022.

StreamNow's principal executive officers include:

• Derek Calloway, Chief Executive Officer and Co-Founder;

• Priya Menon, Chief Operating Officer and Co-Founder;

• Tobias Rennert, General Counsel; and

• Sandra Yee, Vice President, Content Acquisition.

StreamNow's estimated revenue for fiscal year 2025 was approximately $312 million. The company maintains its principal office at 3400 Wilshire Boulevard, Suite 1800, Los Angeles, California 90010, and employs approximately 640 individuals across offices in Los Angeles, Austin, Texas, and Dublin, Ireland.

B. StreamNow's Business Model

StreamNow operates as a "super-aggregator" platform that bundles content from multiple studios, independent production companies, and third-party distributors into a single subscription-based or ad-supported (AVOD) streaming interface. StreamNow's platform is available to consumers in 14 countries, including the United States, the United Kingdom, Canada, Australia, Germany, France, Spain, Italy, the Netherlands, Sweden, Norway, Denmark, Brazil, and Mexico. As of the date of this memorandum, StreamNow reports over 18 million active subscribers globally, with an additional estimated 12 million monthly active users on its AVOD tier.

A critical feature of StreamNow's business model is its role as an active content acquirer and distributor — not merely a passive technology platform. StreamNow's VP of Content Acquisition, Sandra Yee, leads a team of approximately 15 content acquisition professionals who negotiate and execute distribution agreements with content suppliers. StreamNow's content acquisition team evaluates potential titles based on projected viewership, demographic appeal, geographic licensing opportunities, and revenue potential. Titles are selected through an internal "greenlight" process that involves editorial review by StreamNow's content curation team, financial modeling by its business analytics group, and approval by senior management.

Once content is acquired, StreamNow exercises editorial control over multiple aspects of its commercial exploitation, including:

• Catalog selection: StreamNow determines which titles to include in or exclude from its platform library, based on commercial and editorial criteria established by its content curation team.

• Pricing tiers: StreamNow determines whether specific titles are available on its subscription tier, its AVOD tier, or both, and may designate certain titles as "premium" content available only to higher-tier subscribers.

• Geographic availability: StreamNow determines which of its 14 territories receive which content, based on licensing restrictions, market demand, regulatory requirements, and competitive considerations.

• Sublicensing arrangements: StreamNow sublicenses content bundles to at least four third-party FAST channel operators, exercising discretion over which titles are included in sublicensed bundles, the financial terms of the sublicense, and the permitted territories and distribution methods.

The four FAST channel operators to which StreamNow sublicenses content are:

1. Brindoval Channel Networks, Inc., a Dallas, Texas-based FAST channel operator;

2. BrightLoop Media, LLC, a Miami, Florida-based FAST channel operator;

3. Velvet Stream Partners, LP, a Toronto, Ontario, Canada-based FAST channel operator; and

4. Pacific Lantern Digital Pty Ltd, a Sydney, New South Wales, Australia-based FAST channel operator.

StreamNow's sublicensing revenue from these four operators totaled approximately $41.3 million in fiscal year 2025, of which approximately $6.5 million was attributable to bundles containing Aurelius titles.

C. The Infringing Activity

Beginning approximately April 1, 2024, StreamNow ingested 217 Aurelius-owned audiovisual works into its platform library and made them available for streaming to its subscribers and AVOD users. The 217 titles comprise 142 feature films and 75 television series encompassing a total of 1,038 individual episodes. The titles include works from the Meridian franchise, the Iron Compass series, and the Thornfield catalog, among other commercially valuable Aurelius properties.

StreamNow's purported source of distribution rights for the Aurelius titles is a Content Distribution Agreement with Meridian Digital Distributors, LLC ("MDD"), a California limited liability company (California Secretary of State File No. 202115729430). MDD's sole member and manager is Franklin Ogilvie. The Content Distribution Agreement was allegedly executed on March 15, 2024, although Aurelius has not been provided with a copy of the fully executed agreement and has not been able to independently verify its terms or authenticity. StreamNow's VP of Content Acquisition, Sandra Yee, referenced the MDD agreement as the basis for StreamNow's claimed distribution rights in an email dated November 3, 2025, sent in response to an informal inquiry from Aurelius's outside licensing consultant, Raj Anantharam.

The following facts regarding MDD and Franklin Ogilvie are material to the analysis:

• Franklin Ogilvie was formerly employed as a mid-level licensing manager at Aurelius Media Americas, Inc. His employment with AMA ended on June 30, 2021, following an internal investigation into allegations of unauthorized access to Aurelius's content management systems. The circumstances of Ogilvie's departure were well documented within Aurelius and are reflected in contemporaneous internal investigation records maintained by Aurelius's compliance department.

• MDD was formed as a California limited liability company in late 2021, approximately four to five months after Ogilvie's separation from Aurelius. MDD has no established track record in content distribution and, based on publicly available information, appears to have minimal capitalization and operational infrastructure.

• Aurelius has never granted MDD any license, sublicense, or distribution authority over any Aurelius-owned content. MDD is not and has never been an authorized distributor of Aurelius content. No officer, director, or authorized representative of Aurelius or Aurelius Media Americas has executed any agreement with MDD, and no such agreement exists in Aurelius's records.

• The purported Content Distribution Agreement between MDD and StreamNow allegedly covered approximately 350 or more titles, of which 217 are Aurelius-owned works. The scope of this purported license — encompassing a substantial portion of a major publicly traded studio's library — is extraordinary for a small, newly formed California LLC with no apparent industry track record.

The CipherTrace Forensic Analysis Summary (dated March 5, 2026), prepared by CipherTrace Analytics, LLC under the direction of engagement lead Dr. Nathan Frey, has confirmed the following revenue figures attributable to the Aurelius titles on StreamNow's platform during the 22-month infringement period:

CipherTrace's analysis further determined that the 217 Aurelius titles accounted for approximately 7.18% of StreamNow's total streams during the infringement period, making the Aurelius catalog a significant driver of subscriber acquisition, subscriber retention, and advertiser engagement on the platform.

Following an informal inquiry by Aurelius's outside licensing consultant, Raj Anantharam, in late October 2025, and Sandra Yee's response on November 3, 2025, Aurelius promptly escalated the matter to Calderwood & Harkness. Notably, despite the informal inquiry and the exchange of correspondence that followed, StreamNow continued to stream all 217 Aurelius titles on its platform and did not remove or disable access to any of the infringing content. As of the date of this memorandum, all 217 titles remain available on StreamNow's platform.

IV. Legal Framework: DMCA § 512 Safe Harbor Provisions

A. Overview of § 512

The Digital Millennium Copyright Act of 1998, Pub. L. No. 105-304, 112 Stat. 2860, added Section 512 to the Copyright Act to establish a series of "safe harbors" that limit the monetary liability of qualifying "service providers" for certain categories of copyright infringement. The legislative history of § 512 reflects Congress's intent to balance the interests of copyright owners with the need to provide legal certainty to internet intermediaries whose systems may be used by third parties to engage in infringing activity. See H.R. Rep. No. 105-551, pt. 2, at 49-50 (1998); S. Rep. No. 105-190, at 19-20 (1998).

Section 512 establishes four distinct categories of safe harbor, each corresponding to a different type of internet intermediary function:

§ 512(a) — Transitory Digital Network Communications (Conduit). This safe harbor applies to service providers that function as mere conduits for the transmission of digital communications initiated by or at the direction of a third party. The service provider must transmit, route, or provide connections for the material through the provider's system or network without modification to the content, without selection of the material by the service provider, and without the material being maintained on the provider's system for longer than reasonably necessary for the transmission. 17 U.S.C. § 512(a).

§ 512(b) — System Caching. This safe harbor applies to the intermediate and temporary storage of material that is made available online by a person other than the service provider, where the storage is carried out through an automatic technical process for the purpose of making the material available to subsequent users who request access to the material from the originating source. 17 U.S.C. § 512(b).

§ 512(c) — Information Residing on Systems or Networks at Direction of Users (Hosting). This safe harbor applies to service providers for infringement 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. 17 U.S.C. § 512(c). This is the most commonly invoked safe harbor and the one most likely to be asserted by StreamNow in this case.

§ 512(d) — Information Location Tools. This safe harbor applies to service providers that refer or link users to an online location containing infringing material by using information location tools, including directories, indexes, references, pointers, or hypertext links. 17 U.S.C. § 512(d).

Each of these safe harbors is subject to specific statutory eligibility requirements, discussed below, as well as threshold conditions that apply to all four categories.

B. Threshold Requirements Under § 512(i)

Before a service provider may invoke any of the four safe harbor categories, it must satisfy two threshold conditions set forth in § 512(i):

First, the service provider must have "adopted and reasonably implemented, and inform[ed] 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." 17 U.S.C. § 512(i)(1)(A). Courts have interpreted this requirement to demand more than the mere adoption of a paper policy; the service provider must demonstrate that it actually implements the policy in a meaningful way. See, e.g., BMG Rights Mgmt. (US) LLC v. Cox Commc'ns, Inc., 881 F.3d 293, 303-05 (4th Cir. 2018) (finding that Cox did not reasonably implement its repeat infringer policy where it systematically failed to terminate the accounts of repeat infringers).

Second, the service provider must "accommodate[] and [must] not interfere with standard technical measures" used by copyright owners to identify or protect copyrighted works. 17 U.S.C. § 512(i)(1)(B). "Standard technical measures" are defined as measures that are "developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process," are "available to any person on reasonable and nondiscriminatory terms," and "do not impose substantial costs on service providers or substantial burdens on their systems or networks." 17 U.S.C. § 512(i)(2).

StreamNow's compliance with these threshold requirements is questionable on the record currently available to us. Our investigation has not identified evidence that StreamNow maintains a meaningful repeat infringer termination policy applicable to its content suppliers (as distinct from end users), and there are indications that StreamNow may not accommodate standard content identification technologies in the manner contemplated by § 512(i)(1)(B). However, as discussed in detail in Section V below, these threshold issues need not be reached if StreamNow fails to qualify as a "service provider" acting within any of the four safe harbor categories in the first instance, which is our primary conclusion.

C. Definition of "Service Provider"

Section 512 employs two definitions of "service provider," one narrow and one broad:

For purposes of § 512(a) only, § 512(k)(1)(A) defines "service provider" narrowly as "an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received." This definition corresponds to the function of internet access providers and telecommunications carriers that serve as passive conduits for data transmission.

For purposes of §§ 512(b) through (d), § 512(k)(1)(B) defines "service provider" more broadly as "a provider of online services or network access, or the operator of facilities therefor." This broader definition encompasses a wider range of entities that operate internet-based services, including hosting providers, search engines, and other online platforms.

Even under the broader definition, however, the safe harbor provisions are designed for passive intermediaries that transmit, cache, or host material at the direction of users — not for entities that actively acquire, curate, license, and monetize copyrighted content as their principal business activities. The legislative history makes clear that the safe harbors were crafted to address the problem of intermediary liability for the acts of third parties — that is, the concern that passive technology platforms might be held vicariously or contributorily liable for infringement committed by their users, even where the platform had no direct involvement in the infringing conduct. See H.R. Rep. No. 105-551, pt. 2, at 49-50 (1998). The safe harbors were not designed to provide a blanket immunity for any entity that happens to use the internet as a distribution mechanism, regardless of its actual role in the infringing activity.

As the following analysis demonstrates, StreamNow's business model — which involves the affirmative acquisition of content through negotiated licensing agreements, the exercise of comprehensive editorial control over catalog composition and distribution, and the generation of tens of millions of dollars in direct revenue from the infringing works — places it squarely outside the class of passive intermediaries that the DMCA safe harbors were intended to protect.

V. Analysis: StreamNow Does Not Qualify for § 512 Safe Harbor

A. § 512(a) — Transitory Digital Network Communications: Not Applicable

Section 512(a) provides a safe harbor for a service provider that functions as a mere conduit for the transmission of digital communications initiated by or at the direction of a third party. To qualify, the service provider must satisfy several conditions, including that (1) the transmission was initiated by or at the direction of a person other than the service provider; (2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider; (3) the service provider does not select the recipients of the material; (4) no copy of the material is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained for a longer period than is reasonably necessary; and (5) the material is transmitted through the system or network without modification of its content. 17 U.S.C. § 512(a)(1)-(5).

StreamNow's operations fail every element of this safe harbor. StreamNow does not merely transmit content initiated by a third party through its network as a passive conduit. To the contrary, StreamNow stores, curates, organizes, and streams content from its own platform library to end users on demand. The 217 Aurelius titles were affirmatively ingested into StreamNow's platform by StreamNow's content acquisition team, stored on StreamNow's servers (or servers controlled and operated by StreamNow through its cloud infrastructure provider), and maintained on those servers for a period of 22 months and counting. The content was not transmitted through StreamNow's system in a transitory manner; it was permanently stored and made continuously available to StreamNow's subscribers and AVOD users.

Moreover, StreamNow selects the content that appears on its platform — the content is not selected by a third-party user. StreamNow selects the recipients of the content (i.e., its subscribers and AVOD users) and determines in which of its 14 territories the content is available. StreamNow modifies the presentation of the content by embedding it within its proprietary user interface, adding metadata, categorization tags, recommendation algorithms, and advertising overlays. None of these activities is consistent with the passive conduit function that § 512(a) is designed to protect.

Conclusion: Section 512(a) is plainly inapplicable to StreamNow's operations with respect to the Aurelius titles, and no reasonable argument can be made that StreamNow functions as a transitory digital network communications conduit.

B. § 512(b) — System Caching: Not Applicable

Section 512(b) provides a safe harbor for the "intermediate and temporary storage of material" that is "made available online by a person other than the service provider" and where the storage is "carried out through an automatic technical process for the purpose of making the material available to users who, subsequent to the delivery of the material to the originating site, request access to the material from that originating site." 17 U.S.C. § 512(b)(1). The caching safe harbor is designed to protect service providers that automatically store copies of web content to improve network efficiency and reduce latency — a standard function of content delivery networks and internet service providers.

StreamNow's storage of the 217 Aurelius titles bears no resemblance to the temporary, automatic caching that § 512(b) is designed to address. StreamNow's storage of the Aurelius content is neither intermediate nor temporary. The titles were affirmatively ingested into StreamNow's platform library as part of a deliberate content acquisition strategy and have been maintained on StreamNow's systems for approximately 22 months. The storage was not carried out through an automatic technical process; it resulted from a negotiated business transaction — the purported Content Distribution Agreement with MDD — and the deliberate editorial decision to include the titles in StreamNow's catalog. The content was not made available by a "person other than the service provider" in the sense contemplated by the caching safe harbor; it was acquired by StreamNow through its content acquisition team and presented as part of StreamNow's own curated content library.

Furthermore, § 512(b) contemplates storage for the purpose of making material available to users who request access from an "originating site." The Aurelius titles were not cached copies of content hosted on another website; they were the primary copies of the content as distributed through StreamNow's platform. There is no "originating site" from which the content was originally made available and to which users were being redirected or from which cached copies were being served.

Conclusion: Section 512(b) is inapplicable to StreamNow's operations with respect to the Aurelius titles. The caching safe harbor has no application to a commercial streaming platform that permanently stores and distributes copyrighted content as part of its core business operations.

C. § 512(c) — Information Residing on Systems at Direction of Users: Not Applicable

Section 512(c) is the safe harbor most likely to be asserted by StreamNow and therefore warrants the most detailed analysis. This safe harbor protects a service provider from liability for copyright infringement "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," provided that the service provider satisfies three conditions set forth in § 512(c)(1)(A)-(C). 17 U.S.C. § 512(c)(1).

As demonstrated below, StreamNow fails to satisfy the threshold requirement that the infringing material was stored "at the direction of a user," and it independently fails the two exclusionary tests set forth in § 512(c)(1)(A) (knowledge) and § 512(c)(1)(B) (right and ability to control plus direct financial benefit). Any one of these failures is independently sufficient to preclude StreamNow from invoking § 512(c); taken together, they establish beyond serious question that the hosting safe harbor is unavailable.

1. "At the Direction of a User" Requirement

The threshold requirement of § 512(c) is that the infringing material must have been stored on the service provider's system "at the direction of a user." This language establishes the foundational principle that § 512(c) protects service providers from liability arising from the acts of their users — that is, from the infringing content that third-party users upload to or store on the service provider's platform. The safe harbor presupposes a passive relationship in which the service provider makes its system available for user-directed activity and the infringing material is placed on the system by a user, not by the service provider itself.

StreamNow's content was not uploaded by users. StreamNow acquired the 217 Aurelius titles through the purported Content Distribution Agreement with MDD — a content aggregator and purported distributor. MDD is not a "user" of StreamNow's platform in any meaningful sense; it is (or purported to be) a content supplier with which StreamNow negotiated a commercial distribution agreement at arm's length. The decision to acquire the Aurelius titles and ingest them into StreamNow's platform library was made by StreamNow's own content acquisition team, led by VP of Content Acquisition Sandra Yee. Yee and her team evaluated the titles based on projected viewership and revenue potential, negotiated the terms of the Content Distribution Agreement with MDD, and directed the ingestion of the titles into StreamNow's platform through StreamNow's internal content management workflow.

This is fundamentally different from the paradigmatic § 512(c) scenario in which a user uploads content to a platform without the platform's advance knowledge or editorial involvement. In the user-upload paradigm — exemplified by platforms such as Crowne Albany Partners LLC, Vimeo, or similar video-hosting services — the service provider makes its storage and hosting infrastructure available to users, and users independently decide what content to upload. The service provider does not solicit, negotiate for, evaluate, or select specific titles for inclusion. By contrast, StreamNow's acquisition of the Aurelius titles was the product of an affirmative business decision by StreamNow's content acquisition professionals — precisely the type of editorial, commercial activity that distinguishes a content distributor from a passive hosting service.

The Ninth Circuit has recognized the critical distinction between platforms that host user-uploaded content passively and platforms that actively curate and distribute professionally produced content they have affirmatively acquired. While the Ninth Circuit has broadly construed the § 512(c) safe harbor in certain contexts involving user-generated content platforms, it has consistently emphasized that the safe harbor's application depends on the nature of the service provider's relationship to the infringing content. Where the service provider itself acquires content through commercial negotiations and exercises editorial control over its distribution, the "at the direction of a user" requirement is not satisfied, and the § 512(c) safe harbor does not apply.

StreamNow may attempt to argue that MDD should be treated as a "user" that "directed" the storage of the Aurelius content on StreamNow's system. This argument fails for several reasons. First, MDD's relationship with StreamNow is that of a content supplier and business partner, not a user of StreamNow's platform in the sense contemplated by § 512(c). MDD did not access StreamNow's platform and upload content through a user-facing upload interface; rather, MDD and StreamNow entered into a negotiated commercial agreement pursuant to which StreamNow acquired distribution rights and undertook the affirmative step of ingesting the titles into its library. Second, even if MDD were characterized as a "user," the storage of the Aurelius content was not solely "at the direction of" MDD; it was equally at the direction of StreamNow, which selected the titles for inclusion, determined the territories in which they would be available, assigned them to pricing tiers, and sublicensed them to FAST channel operators. The exercise of this level of editorial and commercial control over the content is inconsistent with the passive hosting function that § 512(c) is designed to protect.

2. Right and Ability to Control Infringing Activity and Direct Financial Benefit (§ 512(c)(1)(B))

Even if StreamNow could overcome the threshold "at the direction of a user" requirement — which, for the reasons stated above, it cannot — § 512(c)(1)(B) independently bars StreamNow from invoking the safe harbor. Section 512(c)(1)(B) provides that a service provider does not qualify for the § 512(c) safe harbor if it "receive[s] 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." 17 U.S.C. § 512(c)(1)(B). Both prongs of this test are satisfied here.

Right and ability to control. StreamNow exercises comprehensive editorial and operational control over its platform catalog, including control over which titles to include in or exclude from the platform, which of its 14 territories receive which content, how content is categorized and presented to users, what pricing tier (subscription or AVOD) each title is assigned to, and which titles are bundled and sublicensed to the four third-party FAST channel operators. StreamNow can add or remove any title from its platform at will, and it regularly exercises this authority as part of its ongoing catalog management operations. This level of control far exceeds the mere ability to remove infringing material upon notification — the baseline capability that virtually every hosting service possesses but that courts have recognized is insufficient, standing alone, to constitute the "right and ability to control" within the meaning of § 512(c)(1)(B).

The Ninth Circuit has articulated a "something more" standard for the "right and ability to control" element, requiring that the service provider's control extend beyond the mere ability to remove or block access to infringing material. See, e.g., UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1030 (9th Cir. 2013) (holding that the "right and ability to control" requires "something more" than the ability to remove or block access, such as "substantial influence on the activities of users" or participation in the infringing activity). StreamNow's active curation, catalog selection, territorial allocation, pricing decisions, and sublicensing arrangements constitute precisely the "something more" that the Ninth Circuit's standard contemplates. StreamNow does not merely have the technical ability to remove content from its platform; it actively manages every aspect of the content's commercial exploitation, from acquisition through distribution and monetization. StreamNow's content curation team exercises editorial judgment over which titles to feature prominently on the platform, how to categorize and market them, and how to optimize their revenue potential across multiple distribution channels. This is the functional equivalent of a traditional content distributor's role, not the passive intermediary function that § 512(c) is designed to protect.

Direct financial benefit. StreamNow derived $38.6 million in total attributable revenue from the 217 Aurelius titles during the 22-month infringement period. This revenue is composed of $22.4 million in subscription revenue, $9.7 million in advertising revenue from the AVOD tier, and $6.5 million in sublicensing fees received from the four FAST channel operators for content bundles containing Aurelius titles. The CipherTrace Forensic Analysis Summary further establishes that the Aurelius titles constituted 7.18% of StreamNow's total streams during the infringement period, making the Aurelius catalog a significant and measurable driver of subscriber and advertiser engagement on the platform.

This is not the attenuated, generalized financial benefit that courts have held insufficient to disqualify a service provider from the § 512(c) safe harbor. In Viacom International Inc. v. Crowne Albany Partners LLC, Inc., 676 F.3d 19, 38-39 (2d Cir. 2012), the Second Circuit cautioned that the "direct financial benefit" standard should not be so broadly construed as to encompass any general benefit a service provider derives from the operation of its platform, noting that a flat-fee or subscription-based revenue model does not, by itself, establish a "direct financial benefit" from specific infringing content. However, the Second Circuit and other courts have recognized that a direct financial benefit exists where the infringing content is a substantial draw for users — that is, where specific infringing works serve as a significant incentive for users to visit or subscribe to the service, thereby generating revenue that is directly attributable to the infringement rather than to the service provider's operations in general.

Here, the CipherTrace analysis demonstrates precisely that nexus. The Aurelius titles are not incidental content that happens to appear alongside thousands of other works on StreamNow's platform; they are major commercial properties — including a billion-dollar film franchise, a hit television series, and an award-winning drama catalog — that serve as significant draws for subscribers and advertisers. The 7.18% share of total streams is a substantial proportion for any individual licensor's catalog on a multi-content platform, and the $38.6 million in attributable revenue represents a direct, measurable financial benefit that is tied to the specific infringing works rather than to StreamNow's operations in general. Moreover, StreamNow's sublicensing of Aurelius titles to FAST channel operators, and its receipt of $6.5 million in sublicensing fees for bundles containing those titles, represents an additional layer of direct financial benefit that is unambiguously attributable to the infringing content.

3. Actual Knowledge and Red Flag Knowledge (§ 512(c)(1)(A))

Section 512(c)(1)(A) imposes three related knowledge requirements. To qualify for the safe harbor, the service provider must: (i) 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 actual knowledge, not be aware of facts or circumstances from which infringing activity is apparent (the "red flag" test); and (iii) upon obtaining such knowledge or awareness, act expeditiously to remove, or disable access to, the material. 17 U.S.C. § 512(c)(1)(A)(i)-(iii).

Although we have concluded that StreamNow fails the § 512(c) safe harbor on the independent grounds that the content was not stored "at the direction of a user" (Section V.C.1) and that StreamNow has the right and ability to control the infringing activity and receives a direct financial benefit from it (Section V.C.2), we address the knowledge requirements for completeness and to further demonstrate the weakness of any § 512(c) defense StreamNow might assert.

StreamNow had multiple red flags that should have alerted it to the infringing nature of the Aurelius content on its platform:

(a) MDD's recent formation and lack of track record. MDD was formed as a California LLC in late 2021, only a few months after the departure of its sole member, Franklin Ogilvie, from Aurelius Media Americas. MDD had no established history or track record in content distribution at the time it purportedly licensed over 350 titles — including 217 works from one of Europe's largest publicly traded media companies — to StreamNow. A reasonably diligent content acquirer in StreamNow's position would have recognized that a small, newly formed LLC with no industry track record was an unlikely source of legitimate distribution rights for such a substantial volume of premium studio content.

(b) Ogilvie's former employment at Aurelius Media Americas. Franklin Ogilvie's former position as a mid-level licensing manager at Aurelius Media Americas was, upon information and belief, known to StreamNow's content acquisition team, or at minimum could have been readily discovered through basic due diligence. Ogilvie's former employment at the very company whose content MDD purported to license should have prompted rigorous inquiry into whether MDD had been duly authorized by Aurelius to distribute the content. A reasonable content acquirer, aware that its prospective content supplier's principal was a former employee of the content owner, would have sought direct confirmation of the license from the content owner itself — a step that StreamNow apparently never took.

(c) The extraordinary breadth of the purported license. The MDD–StreamNow Content Distribution Agreement purportedly covered approximately 350 or more titles, of which 217 were Aurelius-owned works representing a substantial portion of Aurelius's content library. The scope of this license is extraordinary for a newly formed, single-member LLC with no apparent studio relationships, capitalization, or operational infrastructure. A license of this magnitude — encompassing a billion-dollar film franchise, a major television series, and a BAFTA-winning drama catalog — would ordinarily be negotiated directly between a major studio and a well-established distribution partner, not channeled through a previously unknown intermediary. The sheer scope of MDD's purported license should have raised obvious questions about MDD's authority and the legitimacy of the arrangement.

(d) Failure to remove content following Aurelius's informal inquiry. In late October 2025, Aurelius's outside licensing consultant, Raj Anantharam, contacted StreamNow to inquire about the basis for StreamNow's distribution of Aurelius content. Sandra Yee responded on November 3, 2025, referencing the MDD Content Distribution Agreement. Following this exchange, and notwithstanding the obvious questions it raised about the legitimacy of MDD's claimed distribution authority, StreamNow did not remove or disable access to any of the 217 Aurelius titles. As of the date of this memorandum — more than four months after Aurelius's initial informal inquiry — all 217 titles remain available on StreamNow's platform. Even under the most generous interpretation of the "expeditious removal" requirement in § 512(c)(1)(A)(iii), StreamNow's failure to take any action in response to Aurelius's inquiry constitutes a failure to act expeditiously upon becoming aware of facts or circumstances from which infringing activity was apparent.

In sum, even if the knowledge requirements of § 512(c)(1)(A) were the only barrier to StreamNow's invocation of the safe harbor — which they are not — StreamNow's constructive and actual knowledge of the infringement would independently disqualify it from § 512(c) protection.

4. Ninth Circuit Precedent

The Ninth Circuit — the circuit in which this matter would be litigated — has developed a substantial body of case law analyzing the scope and application of the § 512(c) safe harbor. While the Ninth Circuit has broadly construed § 512(c) in certain cases involving user-generated content platforms, its precedent consistently supports the distinction between passive hosting services and active content distributors that is central to our analysis.

The Ninth Circuit's approach to § 512(c) is grounded in several key principles that are directly applicable here:

First, the Ninth Circuit has consistently recognized the distinction between platforms that host user-generated content in a passive capacity and platforms that actively select, curate, and distribute professionally produced content they have affirmatively acquired. In cases involving user-generated content platforms, the court has emphasized that the safe harbor's protections are at their strongest where the service provider's role is limited to providing a platform for user expression and the infringing content is uploaded by third-party users without the service provider's advance knowledge or editorial involvement. By contrast, where the service provider plays an active role in selecting and distributing specific content, its relationship to the infringing activity is fundamentally different from the passive hosting function that § 512(c) is designed to protect.

Second, the Ninth Circuit has articulated the "something more" standard for the "right and ability to control" element of § 512(c)(1)(B). See UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1030 (9th Cir. 2013). Under this standard, a service provider's "right and ability to control" infringing activity is not established merely by its ability to remove content from its platform — a capability that virtually every hosting service possesses. Rather, the standard requires evidence of "something more," such as substantial participation in or influence over the infringing activity. StreamNow's active curation, catalog selection, territorial allocation, pricing decisions, and sublicensing arrangements constitute precisely the type of substantial participation and influence that satisfies this standard. StreamNow does not merely have the ability to remove content; it affirmatively manages every commercial aspect of the content's distribution.

Third, the Ninth Circuit has recognized that the "direct financial benefit" element of § 512(c)(1)(B) is satisfied where specific infringing content serves as a draw for users or subscribers. Where the financial benefit is directly attributable to specific infringing works — rather than being merely an incidental consequence of the service provider's general operations — the standard is met. Here, the $38.6 million in revenue attributable to the 217 Aurelius titles, and the 7.18% share of total streams, establish a direct and measurable nexus between the infringing content and StreamNow's revenue.

It is also instructive to consider the broader context of § 512(c) jurisprudence beyond the Ninth Circuit. The Second Circuit's decision in Viacom International Inc. v. Crowne Albany Partners LLC, Inc., 676 F.3d 19 (2d Cir. 2012), while applying § 512(c) broadly in the context of a user-generated content platform, emphasized that the safe harbor's applicability depends on the specific facts of each case and that the "right and ability to control" and "direct financial benefit" exclusions serve as meaningful limitations on the safe harbor's scope. The court's analysis in Viacom is distinguishable from the present case in a critical respect: Crowne Albany Partners LLC was a platform where infringing content was uploaded by millions of individual users without Crowne Albany Partners LLC's advance knowledge or editorial involvement, whereas StreamNow affirmatively acquired the Aurelius titles through a negotiated business transaction and exercised comprehensive editorial control over their distribution.

StreamNow's business model as a "super-aggregator" that licenses content from distributors, bundles it into a curated catalog, sets pricing, determines geographic availability, and sublicenses it to downstream FAST channel operators is fundamentally different from the user-generated content platforms that have been the principal beneficiaries of § 512(c). StreamNow operates as a content distributor, not a hosting service, and its relationship to the infringing Aurelius content is that of a licensee and distributor, not a passive intermediary.

D. § 512(d) — Information Location Tools: Not Applicable

Section 512(d) provides a safe harbor for a service provider that "refer[s] or link[s] users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link." 17 U.S.C. § 512(d). This safe harbor is designed to protect search engines, link aggregators, and similar services that direct users to third-party websites where infringing content is hosted, without themselves hosting, reproducing, or distributing the content.

StreamNow does not merely link to infringing content hosted on a third-party website. StreamNow hosts, reproduces, and distributes the 217 Aurelius titles directly from its own platform to its subscribers and AVOD users. StreamNow's platform is the source of the infringing content, not merely a link or reference pointing users to an external location. Moreover, StreamNow sublicenses the Aurelius titles to four FAST channel operators, further distributing the content through downstream channels that StreamNow itself controls.

Conclusion: Section 512(d) is inapplicable to StreamNow's operations with respect to the Aurelius titles. The information location tools safe harbor has no application to a platform that directly hosts and distributes the infringing content.

VI. StreamNow's Anticipated Arguments and Rebuttals

Based on our assessment of StreamNow's likely defense strategy and the general litigation posture of technology-oriented companies facing copyright claims, we anticipate that StreamNow and its outside counsel, Grantham Roth & Pearce LLP (Victoria Langford), may advance the following arguments in support of a DMCA safe harbor defense. Each argument is addressed below.

A. Argument: StreamNow Is a "Platform" Entitled to Safe Harbor

StreamNow may characterize itself as a technology platform that aggregates content from third-party providers (such as MDD) and therefore functions analogously to a hosting service eligible for safe harbor protection under § 512(c). StreamNow may argue that its core business is the operation of a technology infrastructure — a streaming platform — and that content suppliers like MDD are the parties responsible for placing content on the platform, in a manner functionally equivalent to users uploading content to a hosting service.

Rebuttal: This characterization fundamentally misrepresents StreamNow's business model and its relationship to the infringing content. StreamNow's relationship with MDD is that of a licensee acquiring distribution rights from a content supplier, not a hosting service passively receiving material uploaded by a user. StreamNow negotiated and executed the March 15, 2024 Content Distribution Agreement through its VP of Content Acquisition, Sandra Yee, who leads a team of 15 content acquisition professionals dedicated to evaluating, selecting, and acquiring content for inclusion in StreamNow's library. StreamNow's content acquisition process involves editorial review, financial modeling, and senior management approval — the hallmarks of an active distributor making affirmative business decisions about which content to acquire and distribute, not a passive platform indifferently accepting whatever material users choose to upload.

The fact that StreamNow uses internet-based technology to distribute content does not transform it into a "hosting service" eligible for § 512(c) protection. If it did, any content distributor that uses the internet as a distribution mechanism could claim safe harbor protection by labeling itself a "platform," regardless of its active role in content acquisition and distribution. Such an outcome would eviscerate the safe harbor's limitations and extend its protections far beyond the class of passive intermediaries that Congress intended to benefit. The relevant inquiry is not whether StreamNow uses technology to distribute content — virtually every modern distributor does — but whether StreamNow functions as a passive intermediary that hosts material "at the direction of" users or as an active content distributor that selects, acquires, and commercially exploits copyrighted works. On the facts of this case, the answer is clear: StreamNow is a content distributor.

B. Argument: StreamNow Relied in Good Faith on MDD's Representations

StreamNow may argue that it relied in good faith on MDD's representations of authority to license the Aurelius titles and therefore lacked the knowledge of infringement required to disqualify it from the § 512(c) safe harbor.

Rebuttal: This argument conflates two distinct legal concepts. Good faith reliance on a licensor's representations of authority may be relevant to the determination of willfulness under 17 U.S.C. § 504(c)(2), which governs the enhancement or reduction of statutory damages based on whether the infringement was committed willfully or innocently. However, good faith reliance on a licensor's representations does not, and cannot, invoke the DMCA safe harbor provisions, which operate as a threshold defense to liability rather than as a damages-mitigating factor.

The § 512(c) safe harbor has specific statutory requirements — including the "at the direction of a user" threshold, the knowledge requirements of § 512(c)(1)(A), and the control-and-financial-benefit exclusion of § 512(c)(1)(B) — none of which are satisfied by mere good faith reliance on a content supplier's representations. StreamNow cannot transform a failed content licensing arrangement into a safe harbor defense simply by asserting that it believed MDD had the authority to license the content.

Moreover, as discussed in detail in Section V.C.3, StreamNow's reliance on MDD was not reasonable in any event. MDD was a recently formed, single-member LLC with no industry track record, whose sole principal was a former Aurelius employee who had departed under circumstances that should have prompted heightened scrutiny. The scope of MDD's purported license — encompassing 350-plus titles, including some of the most commercially valuable properties in Aurelius's library — was extraordinary and should have triggered rigorous due diligence into MDD's actual authority. StreamNow's failure to verify MDD's authority with Aurelius directly — a simple step that would have immediately revealed the fraud — undermines any claim of good faith reliance.

C. Argument: StreamNow Qualifies Under the Broader "Service Provider" Definition

StreamNow may argue that it qualifies as a "service provider" under the broad definition of § 512(k)(1)(B) — "a provider of online services or network access, or the operator of facilities therefor" — and that this broad definition entitles it to invoke the § 512(c) safe harbor.

Rebuttal: StreamNow may well satisfy the broad definition of "service provider" in § 512(k)(1)(B), which encompasses a wide range of entities that operate internet-based services. However, satisfying the definitional threshold of "service provider" is a necessary but not sufficient condition for invoking the safe harbor. Even under the broader definition, a service provider must satisfy all of the specific conditions of the safe harbor category it seeks to invoke. As demonstrated in Section V.C, StreamNow fails every applicable test under § 512(c): the Aurelius content was not placed on StreamNow's system "at the direction of a user"; StreamNow has the right and ability to control the infringing activity through its comprehensive editorial and operational authority over its catalog; and StreamNow receives a direct financial benefit of $38.6 million attributable to the specific infringing works. The broad "service provider" definition does not excuse StreamNow from satisfying these substantive requirements, and StreamNow's failure to satisfy them precludes reliance on the safe harbor regardless of its status as a "service provider" in the definitional sense.

VII. Policy Considerations

While the foregoing legal analysis is sufficient to establish that StreamNow does not qualify for DMCA safe harbor protection, the policy considerations underlying the safe harbor provisions further reinforce this conclusion.

The DMCA safe harbor provisions were enacted in 1998 as part of a carefully calibrated legislative compromise between copyright owners and internet service providers. Congress recognized that passive internet intermediaries — entities whose systems might be used by third parties to transmit, store, or link to infringing material — should not be held strictly liable for infringing acts over which they had no direct knowledge or control. At the same time, Congress did not intend to create a blanket immunity from copyright liability for any entity that uses the internet as a distribution mechanism. The safe harbor provisions contain specific limitations and exclusions — including the "at the direction of a user" requirement, the knowledge requirements, and the control-and-financial-benefit exclusion — precisely to ensure that the protections are limited to the class of passive intermediaries for which they were designed.

Allowing StreamNow to claim safe harbor protection would fundamentally distort the purpose and scope of the DMCA safe harbor provisions. StreamNow is not a passive intermediary that unwittingly hosts infringing material uploaded by its users. It is a sophisticated, well-resourced content distributor that actively acquires, curates, prices, and monetizes copyrighted works as the core of its business model. If StreamNow's characterization of itself as a "platform" or "aggregator" were sufficient to invoke the safe harbor, any content distributor could evade copyrig

PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION / ATTORNEY WORK PRODUCT This memorandum is protected by the attorney-client privilege and the work product doctrine. It is intended solely for the use of the addressees identified below and other authorized representatives of the client. Any disclosure, distribution, or copying of this memorandum or its contents to any unauthorized person is strictly prohibited. If you have received this memorandum in error, please notify the sender immediately and destroy all copies.
CALDERWOOD & HARKNESS LLP 1999 Avenue of the Stars, Suite 3100 Los Angeles, California 90067 Telephone: (310) 555-7200 | Facsimile: (310) 555-7201
MEMORANDUM
I. Executive Summary
This memorandum analyzes whether StreamNow Holdings, Inc. ("StreamNow"), a Delaware corporation (File No. 7291843) headquartered at 3400 Wilshire Boulevard, Suite 1800, Los Angeles, California 90010, can invoke the safe harbor protections of the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 512, as a defense to copyright infringement claims brought by Aurelius Global Media Group PLC ("Aurelius" or "AGMG"). The infringement claims arise from StreamNow's unauthorized reproduction, distribution, and public performance of 217 Aurelius-owned audiovisual works over a 22-month period, running from approximately April 1, 2024, through January 31, 2026. These works encompass some of Aurelius's most commercially valuable intellectual property, including titles from the "Meridian" franchise, the "Iron Compass" series, and the critically acclaimed "Thornfield" period drama catalog.
Conclusion: Based on the factual record developed to date — including the StreamNow Platform & Business Model Memorandum (dated February 28, 2026), the CipherTrace Forensic Analysis Summary (dated March 5, 2026), and relevant correspondence between the parties — it is our firm conclusion that StreamNow does not qualify for protection under any of the four DMCA § 512 safe harbor categories. StreamNow is not a passive hosting service, storage provider, information location tool, or mere conduit for transitory communications. To the contrary, StreamNow actively curates, licenses (or purports to license), and monetizes the infringing content on a large commercial scale. StreamNow exercises editorial control over catalog selection, pricing tiers, and geographic availability across 14 countries. It sublicenses content bundles to at least four third-party Free Ad-Supported Streaming Television ("FAST") channel operators. And it derives substantial direct financial benefit from the infringing activity, including an estimated $38.6 million in total attributable revenue from the 217 Aurelius titles over the 22-month period at issue.
StreamNow's anticipated reliance on the purported Content Distribution Agreement with Meridian Digital Distributors, LLC ("MDD"), allegedly executed on March 15, 2024, does not transform StreamNow into a passive intermediary eligible for safe harbor protection. Rather, that agreement confirms StreamNow's role as an active licensee and distributor — a party that affirmatively negotiated for, acquired, and commercially exploited copyrighted content through its own business operations. The DMCA safe harbor provisions were never intended to shield such entities from copyright infringement liability.
This memorandum sets forth the detailed legal and factual basis for these conclusions. It is intended to support Calderwood & Harkness's pre-suit strategy, the formal demand letter to StreamNow, and any subsequent litigation before the U.S. District Court for the Central District of California.
II. Scope and Purpose
This memorandum is prepared in connection with Calderwood & Harkness LLP's pre-suit assessment and anticipated formal demand on behalf of Aurelius Global Media Group PLC against StreamNow Holdings, Inc. The engagement encompasses claims for copyright infringement under 17 U.S.C. §§ 106, 501, and related provisions of the Copyright Act, as well as potential state-law claims that are the subject of separate analysis.
The specific purpose of this memorandum is to preemptively evaluate and rebut any DMCA safe harbor defense that StreamNow or its outside counsel, Grantham Roth & Pearce LLP (lead partner Victoria Langford), may assert in response to the formal demand or in subsequent litigation before the U.S. District Court for the Central District of California. Given the magnitude of the infringement at issue — 217 titles generating an estimated $38.6 million in attributable revenue — and the sophistication of StreamNow's operations, it is anticipated that StreamNow will advance every available defense, including an argument that it qualifies for DMCA safe harbor protection as a technology "platform" that aggregates content from third-party providers. This memorandum demonstrates that such an argument is without merit on both the facts and the law.
This analysis should be read in conjunction with the following related work product:
• StreamNow Platform & Business Model Memorandum (dated February 28, 2026), which provides a comprehensive overview of StreamNow's corporate structure, technology infrastructure, content acquisition processes, and revenue model.
• CipherTrace Forensic Analysis Summary (dated March 5, 2026), prepared by CipherTrace Analytics, LLC (engagement lead: Dr. Nathan Frey), which details the content fingerprinting methodology, viewership data, and revenue attribution analysis underlying the $38.6 million attributable revenue figure.
• MDD–StreamNow Content Distribution Agreement Analysis Memorandum (dated March 2, 2026), which analyzes the terms of the purported Content Distribution Agreement between MDD and StreamNow and its legal insufficiency as a basis for StreamNow's claimed distribution rights.
Unless otherwise specified, all statutory references in this memorandum are to Title 17 of the United States Code. All monetary figures are expressed in U.S. dollars unless otherwise indicated.
III. Factual Background
The following factual background is drawn from publicly available information, documents produced in the course of Calderwood & Harkness's investigation, communications between the parties, and the CipherTrace Forensic Analysis Summary. This section provides context necessary for the legal analysis that follows; additional factual detail may be found in the referenced appendices.
A. The Parties
1. Aurelius Global Media Group PLC
Aurelius Global Media Group PLC is a publicly traded media and entertainment conglomerate headquartered in London, United Kingdom. Aurelius is registered with Companies House under Registration Number 08724561 and is listed on the London Stock Exchange's AIM market under the ticker symbol AGLM. For the fiscal year ended December 31, 2025, Aurelius reported consolidated revenue of approximately £1.87 billion (approximately $2.36 billion at prevailing exchange rates).
Aurelius owns and controls one of Europe's largest independently held content libraries, comprising over 4,200 film and television titles. The library includes several marquee properties of exceptional commercial and cultural value, including:
• The "Meridian" franchise, consisting of six feature films with a combined global box office of approximately $1.43 billion. The Meridian franchise is one of the highest-grossing UK-originated film series of the last decade and continues to generate significant licensing and merchandising revenue worldwide.
• The "Iron Compass" series, a critically acclaimed action-drama television series spanning four seasons and 48 episodes. The series averaged approximately 9.2 million UK viewers per episode during its original broadcast run and has generated substantial international licensing revenue, including sales to major U.S. streaming platforms.
• The "Thornfield" period drama catalog, comprising 12 titles that have collectively won seven British Academy of Film and Television Arts ("BAFTA") awards. The Thornfield catalog is widely regarded as among the finest examples of British period drama and commands premium licensing fees in international markets.
Aurelius operates in the United States through its wholly-owned Delaware subsidiary, Aurelius Media Americas, Inc. ("AMA"), which maintains its principal office at 1900 Avenue of the Stars, Suite 2200, Los Angeles, California 90067. AMA holds the exclusive U.S. distribution rights for the Aurelius content library and administers licensing relationships with U.S.-based distributors, broadcasters, and streaming platforms.
2. StreamNow Holdings, Inc.
StreamNow Holdings, Inc. is a Delaware corporation that operates a streaming media platform offering subscription-based and advertising-supported (AVOD) video-on-demand services. StreamNow is privately held, with its majority equity position — approximately 62% on a fully diluted basis — held by Pinnacle Ventures Fund III, LP, a San Francisco-based growth equity fund managed by Pinnacle Ventures Management III, LLC. Pinnacle Ventures led StreamNow's $145 million Series C financing round, which closed in June 2022.
StreamNow's principal executive officers include:
• Derek Calloway, Chief Executive Officer and Co-Founder;
• Priya Menon, Chief Operating Officer and Co-Founder;
• Tobias Rennert, General Counsel; and
• Sandra Yee, Vice President, Content Acquisition.
StreamNow's estimated revenue for fiscal year 2025 was approximately $312 million. The company maintains its principal office at 3400 Wilshire Boulevard, Suite 1800, Los Angeles, California 90010, and employs approximately 640 individuals across offices in Los Angeles, Austin, Texas, and Dublin, Ireland.
B. StreamNow's Business Model
StreamNow operates as a "super-aggregator" platform that bundles content from multiple studios, independent production companies, and third-party distributors into a single subscription-based or ad-supported (AVOD) streaming interface. StreamNow's platform is available to consumers in 14 countries, including the United States, the United Kingdom, Canada, Australia, Germany, France, Spain, Italy, the Netherlands, Sweden, Norway, Denmark, Brazil, and Mexico. As of the date of this memorandum, StreamNow reports over 18 million active subscribers globally, with an additional estimated 12 million monthly active users on its AVOD tier.
A critical feature of StreamNow's business model is its role as an active content acquirer and distributor — not merely a passive technology platform. StreamNow's VP of Content Acquisition, Sandra Yee, leads a team of approximately 15 content acquisition professionals who negotiate and execute distribution agreements with content suppliers. StreamNow's content acquisition team evaluates potential titles based on projected viewership, demographic appeal, geographic licensing opportunities, and revenue potential. Titles are selected through an internal "greenlight" process that involves editorial review by StreamNow's content curation team, financial modeling by its business analytics group, and approval by senior management.
Once content is acquired, StreamNow exercises editorial control over multiple aspects of its commercial exploitation, including:
• Catalog selection: StreamNow determines which titles to include in or exclude from its platform library, based on commercial and editorial criteria established by its content curation team.
• Pricing tiers: StreamNow determines whether specific titles are available on its subscription tier, its AVOD tier, or both, and may designate certain titles as "premium" content available only to higher-tier subscribers.
• Geographic availability: StreamNow determines which of its 14 territories receive which content, based on licensing restrictions, market demand, regulatory requirements, and competitive considerations.
• Sublicensing arrangements: StreamNow sublicenses content bundles to at least four third-party FAST channel operators, exercising discretion over which titles are included in sublicensed bundles, the financial terms of the sublicense, and the permitted territories and distribution methods.
The four FAST channel operators to which StreamNow sublicenses content are:
1. Brindoval Channel Networks, Inc., a Dallas, Texas-based FAST channel operator;
2. BrightLoop Media, LLC, a Miami, Florida-based FAST channel operator;
3. Velvet Stream Partners, LP, a Toronto, Ontario, Canada-based FAST channel operator; and
4. Pacific Lantern Digital Pty Ltd, a Sydney, New South Wales, Australia-based FAST channel operator.
StreamNow's sublicensing revenue from these four operators totaled approximately $41.3 million in fiscal year 2025, of which approximately $6.5 million was attributable to bundles containing Aurelius titles.
C. The Infringing Activity
Beginning approximately April 1, 2024, StreamNow ingested 217 Aurelius-owned audiovisual works into its platform library and made them available for streaming to its subscribers and AVOD users. The 217 titles comprise 142 feature films and 75 television series encompassing a total of 1,038 individual episodes. The titles include works from the Meridian franchise, the Iron Compass series, and the Thornfield catalog, among other commercially valuable Aurelius properties.
StreamNow's purported source of distribution rights for the Aurelius titles is a Content Distribution Agreement with Meridian Digital Distributors, LLC ("MDD"), a California limited liability company (California Secretary of State File No. 202115729430). MDD's sole member and manager is Franklin Ogilvie. The Content Distribution Agreement was allegedly executed on March 15, 2024, although Aurelius has not been provided with a copy of the fully executed agreement and has not been able to independently verify its terms or authenticity. StreamNow's VP of Content Acquisition, Sandra Yee, referenced the MDD agreement as the basis for StreamNow's claimed distribution rights in an email dated November 3, 2025, sent in response to an informal inquiry from Aurelius's outside licensing consultant, Raj Anantharam.
The following facts regarding MDD and Franklin Ogilvie are material to the analysis:
• Franklin Ogilvie was formerly employed as a mid-level licensing manager at Aurelius Media Americas, Inc. His employment with AMA ended on June 30, 2021, following an internal investigation into allegations of unauthorized access to Aurelius's content management systems. The circumstances of Ogilvie's departure were well documented within Aurelius and are reflected in contemporaneous internal investigation records maintained by Aurelius's compliance department.
• MDD was formed as a California limited liability company in late 2021, approximately four to five months after Ogilvie's separation from Aurelius. MDD has no established track record in content distribution and, based on publicly available information, appears to have minimal capitalization and operational infrastructure.
• Aurelius has never granted MDD any license, sublicense, or distribution authority over any Aurelius-owned content. MDD is not and has never been an authorized distributor of Aurelius content. No officer, director, or authorized representative of Aurelius or Aurelius Media Americas has executed any agreement with MDD, and no such agreement exists in Aurelius's records.
• The purported Content Distribution Agreement between MDD and StreamNow allegedly covered approximately 350 or more titles, of which 217 are Aurelius-owned works. The scope of this purported license — encompassing a substantial portion of a major publicly traded studio's library — is extraordinary for a small, newly formed California LLC with no apparent industry track record.
The CipherTrace Forensic Analysis Summary (dated March 5, 2026), prepared by CipherTrace Analytics, LLC under the direction of engagement lead Dr. Nathan Frey, has confirmed the following revenue figures attributable to the Aurelius titles on StreamNow's platform during the 22-month infringement period:
CipherTrace's analysis further determined that the 217 Aurelius titles accounted for approximately 7.18% of StreamNow's total streams during the infringement period, making the Aurelius catalog a significant driver of subscriber acquisition, subscriber retention, and advertiser engagement on the platform.
Following an informal inquiry by Aurelius's outside licensing consultant, Raj Anantharam, in late October 2025, and Sandra Yee's response on November 3, 2025, Aurelius promptly escalated the matter to Calderwood & Harkness. Notably, despite the informal inquiry and the exchange of correspondence that followed, StreamNow continued to stream all 217 Aurelius titles on its platform and did not remove or disable access to any of the infringing content. As of the date of this memorandum, all 217 titles remain available on StreamNow's platform.
IV. Legal Framework: DMCA § 512 Safe Harbor Provisions
A. Overview of § 512
The Digital Millennium Copyright Act of 1998, Pub. L. No. 105-304, 112 Stat. 2860, added Section 512 to the Copyright Act to establish a series of "safe harbors" that limit the monetary liability of qualifying "service providers" for certain categories of copyright infringement. The legislative history of § 512 reflects Congress's intent to balance the interests of copyright owners with the need to provide legal certainty to internet intermediaries whose systems may be used by third parties to engage in infringing activity. See H.R. Rep. No. 105-551, pt. 2, at 49-50 (1998); S. Rep. No. 105-190, at 19-20 (1998).
Section 512 establishes four distinct categories of safe harbor, each corresponding to a different type of internet intermediary function:
§ 512(a) — Transitory Digital Network Communications (Conduit). This safe harbor applies to service providers that function as mere conduits for the transmission of digital communications initiated by or at the direction of a third party. The service provider must transmit, route, or provide connections for the material through the provider's system or network without modification to the content, without selection of the material by the service provider, and without the material being maintained on the provider's system for longer than reasonably necessary for the transmission. 17 U.S.C. § 512(a).
§ 512(b) — System Caching. This safe harbor applies to the intermediate and temporary storage of material that is made available online by a person other than the service provider, where the storage is carried out through an automatic technical process for the purpose of making the material available to subsequent users who request access to the material from the originating source. 17 U.S.C. § 512(b).
§ 512(c) — Information Residing on Systems or Networks at Direction of Users (Hosting). This safe harbor applies to service providers for infringement 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. 17 U.S.C. § 512(c). This is the most commonly invoked safe harbor and the one most likely to be asserted by StreamNow in this case.
§ 512(d) — Information Location Tools. This safe harbor applies to service providers that refer or link users to an online location containing infringing material by using information location tools, including directories, indexes, references, pointers, or hypertext links. 17 U.S.C. § 512(d).
Each of these safe harbors is subject to specific statutory eligibility requirements, discussed below, as well as threshold conditions that apply to all four categories.
B. Threshold Requirements Under § 512(i)
Before a service provider may invoke any of the four safe harbor categories, it must satisfy two threshold conditions set forth in § 512(i):
First, the service provider must have "adopted and reasonably implemented, and inform[ed] 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." 17 U.S.C. § 512(i)(1)(A). Courts have interpreted this requirement to demand more than the mere adoption of a paper policy; the service provider must demonstrate that it actually implements the policy in a meaningful way. See, e.g., BMG Rights Mgmt. (US) LLC v. Cox Commc'ns, Inc., 881 F.3d 293, 303-05 (4th Cir. 2018) (finding that Cox did not reasonably implement its repeat infringer policy where it systematically failed to terminate the accounts of repeat infringers).
Second, the service provider must "accommodate[] and [must] not interfere with standard technical measures" used by copyright owners to identify or protect copyrighted works. 17 U.S.C. § 512(i)(1)(B). "Standard technical measures" are defined as measures that are "developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process," are "available to any person on reasonable and nondiscriminatory terms," and "do not impose substantial costs on service providers or substantial burdens on their systems or networks." 17 U.S.C. § 512(i)(2).
StreamNow's compliance with these threshold requirements is questionable on the record currently available to us. Our investigation has not identified evidence that StreamNow maintains a meaningful repeat infringer termination policy applicable to its content suppliers (as distinct from end users), and there are indications that StreamNow may not accommodate standard content identification technologies in the manner contemplated by § 512(i)(1)(B). However, as discussed in detail in Section V below, these threshold issues need not be reached if StreamNow fails to qualify as a "service provider" acting within any of the four safe harbor categories in the first instance, which is our primary conclusion.
C. Definition of "Service Provider"
Section 512 employs two definitions of "service provider," one narrow and one broad:
For purposes of § 512(a) only, § 512(k)(1)(A) defines "service provider" narrowly as "an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received." This definition corresponds to the function of internet access providers and telecommunications carriers that serve as passive conduits for data transmission.
For purposes of §§ 512(b) through (d), § 512(k)(1)(B) defines "service provider" more broadly as "a provider of online services or network access, or the operator of facilities therefor." This broader definition encompasses a wider range of entities that operate internet-based services, including hosting providers, search engines, and other online platforms.
Even under the broader definition, however, the safe harbor provisions are designed for passive intermediaries that transmit, cache, or host material at the direction of users — not for entities that actively acquire, curate, license, and monetize copyrighted content as their principal business activities. The legislative history makes clear that the safe harbors were crafted to address the problem of intermediary liability for the acts of third parties — that is, the concern that passive technology platforms might be held vicariously or contributorily liable for infringement committed by their users, even where the platform had no direct involvement in the infringing conduct. See H.R. Rep. No. 105-551, pt. 2, at 49-50 (1998). The safe harbors were not designed to provide a blanket immunity for any entity that happens to use the internet as a distribution mechanism, regardless of its actual role in the infringing activity.
As the following analysis demonstrates, StreamNow's business model — which involves the affirmative acquisition of content through negotiated licensing agreements, the exercise of comprehensive editorial control over catalog composition and distribution, and the generation of tens of millions of dollars in direct revenue from the infringing works — places it squarely outside the class of passive intermediaries that the DMCA safe harbors were intended to protect.
V. Analysis: StreamNow Does Not Qualify for § 512 Safe Harbor
A. § 512(a) — Transitory Digital Network Communications: Not Applicable
Section 512(a) provides a safe harbor for a service provider that functions as a mere conduit for the transmission of digital communications initiated by or at the direction of a third party. To qualify, the service provider must satisfy several conditions, including that (1) the transmission was initiated by or at the direction of a person other than the service provider; (2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider; (3) the service provider does not select the recipients of the material; (4) no copy of the material is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained for a longer period than is reasonably necessary; and (5) the material is transmitted through the system or network without modification of its content. 17 U.S.C. § 512(a)(1)-(5).
StreamNow's operations fail every element of this safe harbor. StreamNow does not merely transmit content initiated by a third party through its network as a passive conduit. To the contrary, StreamNow stores, curates, organizes, and streams content from its own platform library to end users on demand. The 217 Aurelius titles were affirmatively ingested into StreamNow's platform by StreamNow's content acquisition team, stored on StreamNow's servers (or servers controlled and operated by StreamNow through its cloud infrastructure provider), and maintained on those servers for a period of 22 months and counting. The content was not transmitted through StreamNow's system in a transitory manner; it was permanently stored and made continuously available to StreamNow's subscribers and AVOD users.
Moreover, StreamNow selects the content that appears on its platform — the content is not selected by a third-party user. StreamNow selects the recipients of the content (i.e., its subscribers and AVOD users) and determines in which of its 14 territories the content is available. StreamNow modifies the presentation of the content by embedding it within its proprietary user interface, adding metadata, categorization tags, recommendation algorithms, and advertising overlays. None of these activities is consistent with the passive conduit function that § 512(a) is designed to protect.
Conclusion: Section 512(a) is plainly inapplicable to StreamNow's operations with respect to the Aurelius titles, and no reasonable argument can be made that StreamNow functions as a transitory digital network communications conduit.
B. § 512(b) — System Caching: Not Applicable
Section 512(b) provides a safe harbor for the "intermediate and temporary storage of material" that is "made available online by a person other than the service provider" and where the storage is "carried out through an automatic technical process for the purpose of making the material available to users who, subsequent to the delivery of the material to the originating site, request access to the material from that originating site." 17 U.S.C. § 512(b)(1). The caching safe harbor is designed to protect service providers that automatically store copies of web content to improve network efficiency and reduce latency — a standard function of content delivery networks and internet service providers.
StreamNow's storage of the 217 Aurelius titles bears no resemblance to the temporary, automatic caching that § 512(b) is designed to address. StreamNow's storage of the Aurelius content is neither intermediate nor temporary. The titles were affirmatively ingested into StreamNow's platform library as part of a deliberate content acquisition strategy and have been maintained on StreamNow's systems for approximately 22 months. The storage was not carried out through an automatic technical process; it resulted from a negotiated business transaction — the purported Content Distribution Agreement with MDD — and the deliberate editorial decision to include the titles in StreamNow's catalog. The content was not made available by a "person other than the service provider" in the sense contemplated by the caching safe harbor; it was acquired by StreamNow through its content acquisition team and presented as part of StreamNow's own curated content library.
Furthermore, § 512(b) contemplates storage for the purpose of making material available to users who request access from an "originating site." The Aurelius titles were not cached copies of content hosted on another website; they were the primary copies of the content as distributed through StreamNow's platform. There is no "originating site" from which the content was originally made available and to which users were being redirected or from which cached copies were being served.
Conclusion: Section 512(b) is inapplicable to StreamNow's operations with respect to the Aurelius titles. The caching safe harbor has no application to a commercial streaming platform that permanently stores and distributes copyrighted content as part of its core business operations.
C. § 512(c) — Information Residing on Systems at Direction of Users: Not Applicable
Section 512(c) is the safe harbor most likely to be asserted by StreamNow and therefore warrants the most detailed analysis. This safe harbor protects a service provider from liability for copyright infringement "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," provided that the service provider satisfies three conditions set forth in § 512(c)(1)(A)-(C). 17 U.S.C. § 512(c)(1).
As demonstrated below, StreamNow fails to satisfy the threshold requirement that the infringing material was stored "at the direction of a user," and it independently fails the two exclusionary tests set forth in § 512(c)(1)(A) (knowledge) and § 512(c)(1)(B) (right and ability to control plus direct financial benefit). Any one of these failures is independently sufficient to preclude StreamNow from invoking § 512(c); taken together, they establish beyond serious question that the hosting safe harbor is unavailable.
1. "At the Direction of a User" Requirement
The threshold requirement of § 512(c) is that the infringing material must have been stored on the service provider's system "at the direction of a user." This language establishes the foundational principle that § 512(c) protects service providers from liability arising from the acts of their users — that is, from the infringing content that third-party users upload to or store on the service provider's platform. The safe harbor presupposes a passive relationship in which the service provider makes its system available for user-directed activity and the infringing material is placed on the system by a user, not by the service provider itself.
StreamNow's content was not uploaded by users. StreamNow acquired the 217 Aurelius titles through the purported Content Distribution Agreement with MDD — a content aggregator and purported distributor. MDD is not a "user" of StreamNow's platform in any meaningful sense; it is (or purported to be) a content supplier with which StreamNow negotiated a commercial distribution agreement at arm's length. The decision to acquire the Aurelius titles and ingest them into StreamNow's platform library was made by StreamNow's own content acquisition team, led by VP of Content Acquisition Sandra Yee. Yee and her team evaluated the titles based on projected viewership and revenue potential, negotiated the terms of the Content Distribution Agreement with MDD, and directed the ingestion of the titles into StreamNow's platform through StreamNow's internal content management workflow.
This is fundamentally different from the paradigmatic § 512(c) scenario in which a user uploads content to a platform without the platform's advance knowledge or editorial involvement. In the user-upload paradigm — exemplified by platforms such as Crowne Albany Partners LLC, Vimeo, or similar video-hosting services — the service provider makes its storage and hosting infrastructure available to users, and users independently decide what content to upload. The service provider does not solicit, negotiate for, evaluate, or select specific titles for inclusion. By contrast, StreamNow's acquisition of the Aurelius titles was the product of an affirmative business decision by StreamNow's content acquisition professionals — precisely the type of editorial, commercial activity that distinguishes a content distributor from a passive hosting service.
The Ninth Circuit has recognized the critical distinction between platforms that host user-uploaded content passively and platforms that actively curate and distribute professionally produced content they have affirmatively acquired. While the Ninth Circuit has broadly construed the § 512(c) safe harbor in certain contexts involving user-generated content platforms, it has consistently emphasized that the safe harbor's application depends on the nature of the service provider's relationship to the infringing content. Where the service provider itself acquires content through commercial negotiations and exercises editorial control over its distribution, the "at the direction of a user" requirement is not satisfied, and the § 512(c) safe harbor does not apply.
StreamNow may attempt to argue that MDD should be treated as a "user" that "directed" the storage of the Aurelius content on StreamNow's system. This argument fails for several reasons. First, MDD's relationship with StreamNow is that of a content supplier and business partner, not a user of StreamNow's platform in the sense contemplated by § 512(c). MDD did not access StreamNow's platform and upload content through a user-facing upload interface; rather, MDD and StreamNow entered into a negotiated commercial agreement pursuant to which StreamNow acquired distribution rights and undertook the affirmative step of ingesting the titles into its library. Second, even if MDD were characterized as a "user," the storage of the Aurelius content was not solely "at the direction of" MDD; it was equally at the direction of StreamNow, which selected the titles for inclusion, determined the territories in which they would be available, assigned them to pricing tiers, and sublicensed them to FAST channel operators. The exercise of this level of editorial and commercial control over the content is inconsistent with the passive hosting function that § 512(c) is designed to protect.
2. Right and Ability to Control Infringing Activity and Direct Financial Benefit (§ 512(c)(1)(B))
Even if StreamNow could overcome the threshold "at the direction of a user" requirement — which, for the reasons stated above, it cannot — § 512(c)(1)(B) independently bars StreamNow from invoking the safe harbor. Section 512(c)(1)(B) provides that a service provider does not qualify for the § 512(c) safe harbor if it "receive[s] 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." 17 U.S.C. § 512(c)(1)(B). Both prongs of this test are satisfied here.
Right and ability to control. StreamNow exercises comprehensive editorial and operational control over its platform catalog, including control over which titles to include in or exclude from the platform, which of its 14 territories receive which content, how content is categorized and presented to users, what pricing tier (subscription or AVOD) each title is assigned to, and which titles are bundled and sublicensed to the four third-party FAST channel operators. StreamNow can add or remove any title from its platform at will, and it regularly exercises this authority as part of its ongoing catalog management operations. This level of control far exceeds the mere ability to remove infringing material upon notification — the baseline capability that virtually every hosting service possesses but that courts have recognized is insufficient, standing alone, to constitute the "right and ability to control" within the meaning of § 512(c)(1)(B).
The Ninth Circuit has articulated a "something more" standard for the "right and ability to control" element, requiring that the service provider's control extend beyond the mere ability to remove or block access to infringing material. See, e.g., UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1030 (9th Cir. 2013) (holding that the "right and ability to control" requires "something more" than the ability to remove or block access, such as "substantial influence on the activities of users" or participation in the infringing activity). StreamNow's active curation, catalog selection, territorial allocation, pricing decisions, and sublicensing arrangements constitute precisely the "something more" that the Ninth Circuit's standard contemplates. StreamNow does not merely have the technical ability to remove content from its platform; it actively manages every aspect of the content's commercial exploitation, from acquisition through distribution and monetization. StreamNow's content curation team exercises editorial judgment over which titles to feature prominently on the platform, how to categorize and market them, and how to optimize their revenue potential across multiple distribution channels. This is the functional equivalent of a traditional content distributor's role, not the passive intermediary function that § 512(c) is designed to protect.
Direct financial benefit. StreamNow derived $38.6 million in total attributable revenue from the 217 Aurelius titles during the 22-month infringement period. This revenue is composed of $22.4 million in subscription revenue, $9.7 million in advertising revenue from the AVOD tier, and $6.5 million in sublicensing fees received from the four FAST channel operators for content bundles containing Aurelius titles. The CipherTrace Forensic Analysis Summary further establishes that the Aurelius titles constituted 7.18% of StreamNow's total streams during the infringement period, making the Aurelius catalog a significant and measurable driver of subscriber and advertiser engagement on the platform.
This is not the attenuated, generalized financial benefit that courts have held insufficient to disqualify a service provider from the § 512(c) safe harbor. In Viacom International Inc. v. Crowne Albany Partners LLC, Inc., 676 F.3d 19, 38-39 (2d Cir. 2012), the Second Circuit cautioned that the "direct financial benefit" standard should not be so broadly construed as to encompass any general benefit a service provider derives from the operation of its platform, noting that a flat-fee or subscription-based revenue model does not, by itself, establish a "direct financial benefit" from specific infringing content. However, the Second Circuit and other courts have recognized that a direct financial benefit exists where the infringing content is a substantial draw for users — that is, where specific infringing works serve as a significant incentive for users to visit or subscribe to the service, thereby generating revenue that is directly attributable to the infringement rather than to the service provider's operations in general.
Here, the CipherTrace analysis demonstrates precisely that nexus. The Aurelius titles are not incidental content that happens to appear alongside thousands of other works on StreamNow's platform; they are major commercial properties — including a billion-dollar film franchise, a hit television series, and an award-winning drama catalog — that serve as significant draws for subscribers and advertisers. The 7.18% share of total streams is a substantial proportion for any individual licensor's catalog on a multi-content platform, and the $38.6 million in attributable revenue represents a direct, measurable financial benefit that is tied to the specific infringing works rather than to StreamNow's operations in general. Moreover, StreamNow's sublicensing of Aurelius titles to FAST channel operators, and its receipt of $6.5 million in sublicensing fees for bundles containing those titles, represents an additional layer of direct financial benefit that is unambiguously attributable to the infringing content.
3. Actual Knowledge and Red Flag Knowledge (§ 512(c)(1)(A))
Section 512(c)(1)(A) imposes three related knowledge requirements. To qualify for the safe harbor, the service provider must: (i) 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 actual knowledge, not be aware of facts or circumstances from which infringing activity is apparent (the "red flag" test); and (iii) upon obtaining such knowledge or awareness, act expeditiously to remove, or disable access to, the material. 17 U.S.C. § 512(c)(1)(A)(i)-(iii).
Although we have concluded that StreamNow fails the § 512(c) safe harbor on the independent grounds that the content was not stored "at the direction of a user" (Section V.C.1) and that StreamNow has the right and ability to control the infringing activity and receives a direct financial benefit from it (Section V.C.2), we address the knowledge requirements for completeness and to further demonstrate the weakness of any § 512(c) defense StreamNow might assert.
StreamNow had multiple red flags that should have alerted it to the infringing nature of the Aurelius content on its platform:
(a) MDD's recent formation and lack of track record. MDD was formed as a California LLC in late 2021, only a few months after the departure of its sole member, Franklin Ogilvie, from Aurelius Media Americas. MDD had no established history or track record in content distribution at the time it purportedly licensed over 350 titles — including 217 works from one of Europe's largest publicly traded media companies — to StreamNow. A reasonably diligent content acquirer in StreamNow's position would have recognized that a small, newly formed LLC with no industry track record was an unlikely source of legitimate distribution rights for such a substantial volume of premium studio content.
(b) Ogilvie's former employment at Aurelius Media Americas. Franklin Ogilvie's former position as a mid-level licensing manager at Aurelius Media Americas was, upon information and belief, known to StreamNow's content acquisition team, or at minimum could have been readily discovered through basic due diligence. Ogilvie's former employment at the very company whose content MDD purported to license should have prompted rigorous inquiry into whether MDD had been duly authorized by Aurelius to distribute the content. A reasonable content acquirer, aware that its prospective content supplier's principal was a former employee of the content owner, would have sought direct confirmation of the license from the content owner itself — a step that StreamNow apparently never took.
(c) The extraordinary breadth of the purported license. The MDD–StreamNow Content Distribution Agreement purportedly covered approximately 350 or more titles, of which 217 were Aurelius-owned works representing a substantial portion of Aurelius's content library. The scope of this license is extraordinary for a newly formed, single-member LLC with no apparent studio relationships, capitalization, or operational infrastructure. A license of this magnitude — encompassing a billion-dollar film franchise, a major television series, and a BAFTA-winning drama catalog — would ordinarily be negotiated directly between a major studio and a well-established distribution partner, not channeled through a previously unknown intermediary. The sheer scope of MDD's purported license should have raised obvious questions about MDD's authority and the legitimacy of the arrangement.
(d) Failure to remove content following Aurelius's informal inquiry. In late October 2025, Aurelius's outside licensing consultant, Raj Anantharam, contacted StreamNow to inquire about the basis for StreamNow's distribution of Aurelius content. Sandra Yee responded on November 3, 2025, referencing the MDD Content Distribution Agreement. Following this exchange, and notwithstanding the obvious questions it raised about the legitimacy of MDD's claimed distribution authority, StreamNow did not remove or disable access to any of the 217 Aurelius titles. As of the date of this memorandum — more than four months after Aurelius's initial informal inquiry — all 217 titles remain available on StreamNow's platform. Even under the most generous interpretation of the "expeditious removal" requirement in § 512(c)(1)(A)(iii), StreamNow's failure to take any action in response to Aurelius's inquiry constitutes a failure to act expeditiously upon becoming aware of facts or circumstances from which infringing activity was apparent.
In sum, even if the knowledge requirements of § 512(c)(1)(A) were the only barrier to StreamNow's invocation of the safe harbor — which they are not — StreamNow's constructive and actual knowledge of the infringement would independently disqualify it from § 512(c) protection.
4. Ninth Circuit Precedent
The Ninth Circuit — the circuit in which this matter would be litigated — has developed a substantial body of case law analyzing the scope and application of the § 512(c) safe harbor. While the Ninth Circuit has broadly construed § 512(c) in certain cases involving user-generated content platforms, its precedent consistently supports the distinction between passive hosting services and active content distributors that is central to our analysis.
The Ninth Circuit's approach to § 512(c) is grounded in several key principles that are directly applicable here:
First, the Ninth Circuit has consistently recognized the distinction between platforms that host user-generated content in a passive capacity and platforms that actively select, curate, and distribute professionally produced content they have affirmatively acquired. In cases involving user-generated content platforms, the court has emphasized that the safe harbor's protections are at their strongest where the service provider's role is limited to providing a platform for user expression and the infringing content is uploaded by third-party users without the service provider's advance knowledge or editorial involvement. By contrast, where the service provider plays an active role in selecting and distributing specific content, its relationship to the infringing activity is fundamentally different from the passive hosting function that § 512(c) is designed to protect.
Second, the Ninth Circuit has articulated the "something more" standard for the "right and ability to control" element of § 512(c)(1)(B). See UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1030 (9th Cir. 2013). Under this standard, a service provider's "right and ability to control" infringing activity is not established merely by its ability to remove content from its platform — a capability that virtually every hosting service possesses. Rather, the standard requires evidence of "something more," such as substantial participation in or influence over the infringing activity. StreamNow's active curation, catalog selection, territorial allocation, pricing decisions, and sublicensing arrangements constitute precisely the type of substantial participation and influence that satisfies this standard. StreamNow does not merely have the ability to remove content; it affirmatively manages every commercial aspect of the content's distribution.
Third, the Ninth Circuit has recognized that the "direct financial benefit" element of § 512(c)(1)(B) is satisfied where specific infringing content serves as a draw for users or subscribers. Where the financial benefit is directly attributable to specific infringing works — rather than being merely an incidental consequence of the service provider's general operations — the standard is met. Here, the $38.6 million in revenue attributable to the 217 Aurelius titles, and the 7.18% share of total streams, establish a direct and measurable nexus between the infringing content and StreamNow's revenue.
It is also instructive to consider the broader context of § 512(c) jurisprudence beyond the Ninth Circuit. The Second Circuit's decision in Viacom International Inc. v. Crowne Albany Partners LLC, Inc., 676 F.3d 19 (2d Cir. 2012), while applying § 512(c) broadly in the context of a user-generated content platform, emphasized that the safe harbor's applicability depends on the specific facts of each case and that the "right and ability to control" and "direct financial benefit" exclusions serve as meaningful limitations on the safe harbor's scope. The court's analysis in Viacom is distinguishable from the present case in a critical respect: Crowne Albany Partners LLC was a platform where infringing content was uploaded by millions of individual users without Crowne Albany Partners LLC's advance knowledge or editorial involvement, whereas StreamNow affirmatively acquired the Aurelius titles through a negotiated business transaction and exercised comprehensive editorial control over their distribution.
StreamNow's business model as a "super-aggregator" that licenses content from distributors, bundles it into a curated catalog, sets pricing, determines geographic availability, and sublicenses it to downstream FAST channel operators is fundamentally different from the user-generated content platforms that have been the principal beneficiaries of § 512(c). StreamNow operates as a content distributor, not a hosting service, and its relationship to the infringing Aurelius content is that of a licensee and distributor, not a passive intermediary.
D. § 512(d) — Information Location Tools: Not Applicable
Section 512(d) provides a safe harbor for a service provider that "refer[s] or link[s] users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link." 17 U.S.C. § 512(d). This safe harbor is designed to protect search engines, link aggregators, and similar services that direct users to third-party websites where infringing content is hosted, without themselves hosting, reproducing, or distributing the content.
StreamNow does not merely link to infringing content hosted on a third-party website. StreamNow hosts, reproduces, and distributes the 217 Aurelius titles directly from its own platform to its subscribers and AVOD users. StreamNow's platform is the source of the infringing content, not merely a link or reference pointing users to an external location. Moreover, StreamNow sublicenses the Aurelius titles to four FAST channel operators, further distributing the content through downstream channels that StreamNow itself controls.
Conclusion: Section 512(d) is inapplicable to StreamNow's operations with respect to the Aurelius titles. The information location tools safe harbor has no application to a platform that directly hosts and distributes the infringing content.
VI. StreamNow's Anticipated Arguments and Rebuttals
Based on our assessment of StreamNow's likely defense strategy and the general litigation posture of technology-oriented companies facing copyright claims, we anticipate that StreamNow and its outside counsel, Grantham Roth & Pearce LLP (Victoria Langford), may advance the following arguments in support of a DMCA safe harbor defense. Each argument is addressed below.
A. Argument: StreamNow Is a "Platform" Entitled to Safe Harbor
StreamNow may characterize itself as a technology platform that aggregates content from third-party providers (such as MDD) and therefore functions analogously to a hosting service eligible for safe harbor protection under § 512(c). StreamNow may argue that its core business is the operation of a technology infrastructure — a streaming platform — and that content suppliers like MDD are the parties responsible for placing content on the platform, in a manner functionally equivalent to users uploading content to a hosting service.
Rebuttal: This characterization fundamentally misrepresents StreamNow's business model and its relationship to the infringing content. StreamNow's relationship with MDD is that of a licensee acquiring distribution rights from a content supplier, not a hosting service passively receiving material uploaded by a user. StreamNow negotiated and executed the March 15, 2024 Content Distribution Agreement through its VP of Content Acquisition, Sandra Yee, who leads a team of 15 content acquisition professionals dedicated to evaluating, selecting, and acquiring content for inclusion in StreamNow's library. StreamNow's content acquisition process involves editorial review, financial modeling, and senior management approval — the hallmarks of an active distributor making affirmative business decisions about which content to acquire and distribute, not a passive platform indifferently accepting whatever material users choose to upload.
The fact that StreamNow uses internet-based technology to distribute content does not transform it into a "hosting service" eligible for § 512(c) protection. If it did, any content distributor that uses the internet as a distribution mechanism could claim safe harbor protection by labeling itself a "platform," regardless of its active role in content acquisition and distribution. Such an outcome would eviscerate the safe harbor's limitations and extend its protections far beyond the class of passive intermediaries that Congress intended to benefit. The relevant inquiry is not whether StreamNow uses technology to distribute content — virtually every modern distributor does — but whether StreamNow functions as a passive intermediary that hosts material "at the direction of" users or as an active content distributor that selects, acquires, and commercially exploits copyrighted works. On the facts of this case, the answer is clear: StreamNow is a content distributor.
B. Argument: StreamNow Relied in Good Faith on MDD's Representations
StreamNow may argue that it relied in good faith on MDD's representations of authority to license the Aurelius titles and therefore lacked the knowledge of infringement required to disqualify it from the § 512(c) safe harbor.
Rebuttal: This argument conflates two distinct legal concepts. Good faith reliance on a licensor's representations of authority may be relevant to the determination of willfulness under 17 U.S.C. § 504(c)(2), which governs the enhancement or reduction of statutory damages based on whether the infringement was committed willfully or innocently. However, good faith reliance on a licensor's representations does not, and cannot, invoke the DMCA safe harbor provisions, which operate as a threshold defense to liability rather than as a damages-mitigating factor.
The § 512(c) safe harbor has specific statutory requirements — including the "at the direction of a user" threshold, the knowledge requirements of § 512(c)(1)(A), and the control-and-financial-benefit exclusion of § 512(c)(1)(B) — none of which are satisfied by mere good faith reliance on a content supplier's representations. StreamNow cannot transform a failed content licensing arrangement into a safe harbor defense simply by asserting that it believed MDD had the authority to license the content.
Moreover, as discussed in detail in Section V.C.3, StreamNow's reliance on MDD was not reasonable in any event. MDD was a recently formed, single-member LLC with no industry track record, whose sole principal was a former Aurelius employee who had departed under circumstances that should have prompted heightened scrutiny. The scope of MDD's purported license — encompassing 350-plus titles, including some of the most commercially valuable properties in Aurelius's library — was extraordinary and should have triggered rigorous due diligence into MDD's actual authority. StreamNow's failure to verify MDD's authority with Aurelius directly — a simple step that would have immediately revealed the fraud — undermines any claim of good faith reliance.
C. Argument: StreamNow Qualifies Under the Broader "Service Provider" Definition
StreamNow may argue that it qualifies as a "service provider" under the broad definition of § 512(k)(1)(B) — "a provider of online services or network access, or the operator of facilities therefor" — and that this broad definition entitles it to invoke the § 512(c) safe harbor.
Rebuttal: StreamNow may well satisfy the broad definition of "service provider" in § 512(k)(1)(B), which encompasses a wide range of entities that operate internet-based services. However, satisfying the definitional threshold of "service provider" is a necessary but not sufficient condition for invoking the safe harbor. Even under the broader definition, a service provider must satisfy all of the specific conditions of the safe harbor category it seeks to invoke. As demonstrated in Section V.C, StreamNow fails every applicable test under § 512(c): the Aurelius content was not placed on StreamNow's system "at the direction of a user"; StreamNow has the right and ability to control the infringing activity through its comprehensive editorial and operational authority over its catalog; and StreamNow receives a direct financial benefit of $38.6 million attributable to the specific infringing works. The broad "service provider" definition does not excuse StreamNow from satisfying these substantive requirements, and StreamNow's failure to satisfy them precludes reliance on the safe harbor regardless of its status as a "service provider" in the definitional sense.
VII. Policy Considerations
While the foregoing legal analysis is sufficient to establish that StreamNow does not qualify for DMCA safe harbor protection, the policy considerations underlying the safe harbor provisions further reinforce this conclusion.
The DMCA safe harbor provisions were enacted in 1998 as part of a carefully calibrated legislative compromise between copyright owners and internet service providers. Congress recognized that passive internet intermediaries — entities whose systems might be used by third parties to transmit, store, or link to infringing material — should not be held strictly liable for infringing acts over which they had no direct knowledge or control. At the same time, Congress did not intend to create a blanket immunity from copyright liability for any entity that uses the internet as a distribution mechanism. The safe harbor provisions contain specific limitations and exclusions — including the "at the direction of a user" requirement, the knowledge requirements, and the control-and-financial-benefit exclusion — precisely to ensure that the protections are limited to the class of passive intermediaries for which they were designed.
Allowing StreamNow to claim safe harbor protection would fundamentally distort the purpose and scope of the DMCA safe harbor provisions. StreamNow is not a passive intermediary that unwittingly hosts infringing material uploaded by its users. It is a sophisticated, well-resourced content distributor that actively acquires, curates, prices, and monetizes copyrighted works as the core of its business model. If StreamNow's characterization of itself as a "platform" or "aggregator" were sufficient to invoke the safe harbor, any content distributor could evade copyrig

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