Advanced Copyright Issues on the Internet - Fenwick & West LLP

another, or between parts of the system, but not ‘through’ the system. The court finds thatsubsection 512(a) does not protect the transmission of MP3 files.” 1692Second, the court called into question whether Napster had complied with the prefatoryconditions of Section 512(i) of the DMCA (discussed further in subsection (2) below), whichimposes additional requirements on eligibility for any DMCA safe harbor. Section 512(i)requires that the Service Provider adopt and reasonably implement, and inform subscribers andaccount holders of the Service Provider’s system or network of, a policy that provides for thetermination in appropriate circumstances of subscribers and account holders of the ServiceProvider’s system or network who are repeat infringers.The court found questions about Napster’s compliance with Section 512(i) on twogrounds. The first ground was that, although Napster claimed to have had an oral policy fromthe earliest days of its existence, Napster had not adopted a written policy for termination ofrepeat infringers until after the litigation was filed. The court noted that, even were the writtenpolicy ultimately adopted an adequate one, the late adoption of a formal written policy would notnecessarily moot the plaintiffs’ claims to monetary relief for past harms. 1693 The second groundwas that the court believed Napster had not established that it reasonably implemented a policyfor terminating repeat infringers. Specifically, the court noted that Napster blocked users aboutwhom it received notices of infringement by blocking that user’s password, but not the InternetProtocol (IP) address of the user. (The parties sharply disputed whether it would be feasible oreffective to block IP addresses.) The court further noted the plaintiffs’ argument that, becauseNapster did not maintain the actual identity of its users (their real names and physical addresses),blocked users could readily reapply for a new account on the Napster system and continue theirinfringing activity. The court therefore concluded that the plaintiffs had raised genuine issues ofmaterial fact about whether Napster had reasonably implemented a policy of terminating repeatinfringers, and therefore denied Napster’s motion for summary judgment based on a Section512(a) defense. 1694 b. Ellison v. Robertson. In Ellison v. Robertson, 1695 anindividual named Robertson scanned several fictional works written by the plaintiff and postedthem onto the Usenet group “alt.binaries.e-book,” a group that was used primarily to exchangepirated and unauthorized digital copies of text material, principally works of fiction by famousauthors. AOL, acting as a Usenet peer, hosted the infringing materials on its Usenet server for aperiod of fourteen days. The plaintiff sought to hold AOL liable for direct, vicarious and1692 Id. (emphasis in original). The court similarly found that the Napster system did not provide connections“through” its system. “Although the Napster server conveys address information to establish a connectionbetween the requesting and host users, the connection itself occurs through the Internet. … Drawing inferencesin the light most favorable to the non-moving party, this court cannot say that Napster serves as a conduit forthe connection itself, as opposed to the address information that makes the connection possible. Napsterenables or facilitates the initiation of connections, but these connections do not pass through the system withinthe meaning of subsection 512(a).” Id. at 1752.1693 Id. at 1753.1694 Id.1695 189 F. Supp. 2d 1059 (C.D. Cal. 2002).- 370 -