Advanced Copyright Issues on the Internet - Fenwick & West LLP

not make a copy of the material during transmission; and (5) the content of the material is notmodified during transmission.” 1687The court rejected the applicability of the Section 512(a) safe harbor to Napster forseveral reasons. First, the court held that the safe harbor could not provide a complete defense toNapster’s entire system because the system performed more than just the functions oftransmission, routing, and providing of connections. Specifically, the court noted that Section512(n) of the DMCA provides that the four safe harbors “describe separate and distinct functionsfor purposes of applying this section. Whether a service provider qualifies for the limitation onliability in any one of those subsections shall be based solely on the criteria in that subsectionand shall not affect a determination of whether that service provider qualifies for the limitationson liability under any other such subsections.” 1688 The court ruled that the Napster system,through its index of user files and its “hot list” feature that each functioned as an “informationlocation tool,” undisputedly performed some information location functions which, if thosefunctions were to be immunized, must satisfy the separate provisions of the safe harbor set forthin Section 512(d) (discussed in subsection (iv) below). 1689Napster argued that, even if its system functioned in part as an information location tool,that function should be considered incidental to the system’s core function of transmitting MP3music files, and the safe harbor of Section 512(a) should therefore provide a complete defense toits system. The court rejected this argument, holding that because the parties disputed materialissues regarding the operation of Napster’s index, directory and search engine, the court couldnot hold for purposes of summary judgment that the information location tool aspects of theNapster system were peripheral to the alleged infringement, or that they should not be analyzedseparately under Section 512(d). 1690The court then rejected the applicability of Section 512(a) to Napster for two principalreasons. First, the court noted that the preamble of Section 512(a) makes the safe harborapplicable only to service providers “transmitting, routing or providing connections for, materialthrough a system or network controlled or operated by or for the service provider” (emphasisadded). The court found it undisputed that MP3 files do not pass “through” Napster’s servers,but rather “through” the Internet, and ruled that the Internet could not be considered “a system ornetwork controlled or operated by or for the service provider.” 1691 The court rejected Napster’sargument that its system should be deemed to include the Napster browser on its users’computers and that the MP3 files were transmitted “through” that browser: “[E]ven if eachuser’s Napster browser is part of the system, the transmission goes from one part of the system to1687 Id.1688 17 U.S.C. § 512(n).1689 Napster, 54 U.S.P.Q.2d at 1750.1690 Id. at 1750.1691 Id. at 1751.- 369 -