Last Revised: October 16, 2017
Cherry Media, LLC, a Delaware limited liability company (the “Company”), the owner and operator of the website located at www.cherry.tv (the “Website”), will withdraw all rights and privileges from its subscribers and account holders (collectively, “subscribers”) who are deemed repeat infringers. For these purposes, the Company will count “strikes.” A strike will arise against a subscriber every time (1) that it has been adjudicated, in a court of competent jurisdiction, to have committed copyright infringement, or (2) that the Company has actual knowledge, even absent adjudication, that it has committed an act of copyright infringement.
Each separate adjudication gives rise to a separate strike. In addition, to the extent that a single adjudication pertains to different copyrights that were infringed on different days, it can give rise to multiple strikes.
Strikes require proof, not allegation. Accordingly, no strike arises from one or more notifications of claimed infringement (regardless whether subject to counter-notification from the subscriber), or from facts or circumstances from which the subscriber’s infringement seems apparent, absent actual knowledge on the Company’s part.
The Company has decided to follow the rule of “two strikes and you’re out.” Accordingly, a subscriber against whom there are two strikes will be deemed a “repeat infringer.” The subscriber will be defrocked from the Website as soon as practicable (in the ordinary course of business, within one week). Nonetheless, the Company reserves the right to remit a strike under appropriate circumstances, such as when the subscriber provides adequate evidence that it infringed unintentionally or in the good faith belief that its conduct did not constitute infringement, or that the adjudicating court considered the issue of infringement to be open to divergent interpretations. The Company will also consider “appropriate circumstances” to remit a strike as including a requirement of proportionality: A subscriber who engages in widescale exploitation, a small percentage of which is determined to constitute copyright infringement (even if willfully so), will not accrue a strike if that infringement appears aberrational in the entire context of the subscriber’s exploitation.
A strike will arise by virtue of any act of copyright infringement. Typically, those activities will consist of the violation of rights provided under Title 17, United States Code. However, to the extent that the Company gains actual knowledge that a subscriber has violated the copyright laws of a foreign country or of one of the several states, that conduct equally constitutes a strike. The subject infringement is cognizable regardless of whether it occurred in an online context or elsewhere.
Anyone who wishes to bring to the Company’s attention a judgment of copyright infringement as to one of its subscribers may do so by sending, via registered mail, a certified copy of that court judgment, addressed as follows:
Cherry Media, LLC
c/o Corey D. Silverstein, Esq.
30150 Telegraph Road, Suite 444
Bingham Farms, Michigan 48025
A strike arises as to an individual or entity once a final judgment has been entered against it for copyright infringement. However, if the Company gains actual knowledge that an appeal, rehearing, expungement, or a similar device has later reached a contrary determination, then the strike will be eliminated. If the strike arises not from a judgment but instead from the Company’s own knowledge, then the strike will continue as long as the Company’s actual knowledge remains unaltered.
Once defrocked from the Website, the subscriber will not be allowed to rejoin the Website until ten years after the most recent strike. If a subscriber who was previously defrocked returns to the Website, then for a period of one year, the subscriber will be “on probation.” If, during that year, the Company receives a notification of claimed infringement as to that individual—even absent corroboration or court judgment—to which the subscriber fails to reply by an appropriate counter-notification, the subscriber will be defrocked again. Any time that an individual or entity has been twice defrocked, he or she will remain permanently unable to rejoin the Website.
For these purposes, the Company will maintain a registry of its defrocked subscribers. The registry will be updated monthly and will retain all implicated names for a period of 30 years.
Because of the risks of acting on inaccurate information, the Company will not accrue strikes against its subscribers based on allegations that those individuals have been previously defrocked by another service provider.
The Company will accrue a strike with respect to the actual defendant held culpable of copyright infringement. If judgment has been entered against a corporation, that corporation will be deemed the only entity against whom one strike exists for purposes of the repeat infringer policy (meaning that no individual will thereby be implicated).
Concomitantly, if judgment has been entered against an individual, he or she will be deemed the only individual against whom one strike exists for purposes of the repeat infringer policy (meaning that no corporate entity will thereby be implicated). If the strike arises not from a judgment but instead from the Company’s own knowledge, then the entity or individual about whom the Company has actual knowledge will be deemed the one against whom one strike exists for purposes of the repeat infringer policy.
Once an individual or entity has been defrocked, the Company will not allow another individual or entity bearing substantially the identical name and mailing address to enroll in the Website, absent evidence showing that it is not the same individual or entity that was previously defrocked. In addition, to the extent that the Company is provided with evidence that a current subscriber is the same individual or entity that was previously defrocked, and the current subscriber does not credibly challenge that evidence, the Company will terminate service to that subscriber. This exclusion does not apply, however, to previously defrocked subscribers who are already allowed to join after the passage of the requisite years or after satisfying the other criteria set forth above.
A subscriber’s activity of taking down challenged material or of settling a lawsuit for copyright infringement, without more, will not be deemed to create a strike. All the circumstances must be taken into account. If, for example, in the context of a settlement the subscriber admits to having committed copyright infringement and the Company gains actual knowledge of that admission, a strike arises.